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https://www.courtlistener.com/api/rest/v3/opinions/8478739/ | OPINION OF THE COURT
LOURIE, Circuit Judge.
Bapu Corporation (“Bapu”) and its president, Harshad S. Patel (collectively, “appellants”) appeal from the decision of the United States District Court for the District of New Jersey denying appellants’ motion to vacate an arbitration award to Choice Hotels International, Inc. (“Choice”). Bapu Corp. v. Choice Hotels Int’l, Inc., No. 07-CV-5938, 2008 WL 4192056 (D.N.J. Sept. 8, 2008). Because appellants have failed to show that the District Court erred in its decision, we will affirm.
I. BACKGROUND
In 2000, the appellants entered into a franchise agreement with Choice allowing them to open and operate a hotel under the name Quality Inn. The agreement required appellants to renovate the building that they were leasing before they could operate it as a Quality Inn. Under the agreement, all renovations were to be completed by November 30, 2000. Appellants failed to make the required renovations by the deadline. Soon thereafter, Choice offered to extend the deadline for a fee. Choice contends it sent two such offers to the appellants. The first offer was sent on May 8, 2001, allowing the appellants an extension until September 28, 2001 to complete the renovations. The second offer was sent on October 16, 2001, extending the renovation deadline for another three months, until January 16, 2002. The appellants contend that they did not receive the first offer, and agree that they did not accept the second offer. Between 2002 and 2004, Choice sent default notices to the appellant, threatening termination of the contract unless appellants completed the renovation. On November 15, 2004, Choice finally sent appellants a notice of termination, stating that the contract had been terminated and that Choice was entitled to damages.
On October 19, 2006, Choice served Patel with a demand for arbitration, seeking recovery of damages sustained due to the breach of the franchise agreement by both Patel and Bapu. Appellants responded and objected to the arbitration on several grounds, including that it was barred by the statute of limitations applicable to the franchise agreement under Maryland law. Following their preliminary filing, appellants declined to participate in the arbitration. On December 13, 2007, the arbitrator conducted an arbitration hearing to consider the evidence in the case. Appellants failed to appear for the hearing. Instead, the appellants filed a complaint against Choice in the District Court of New Jersey. Appellants moved the Court to enjoin further arbitration proceedings, which it denied.
On January 9, 2008, the arbitrator issued his decision, awarding damages to Choice in the amount of $142,560 and costs in the amount of $7,975. Appellants moved the District Court to vacate the arbitration award. The Court initially granted appellants’ motion to vacate the arbitration award, reasoning that the three-year period of limitations in the fran*308chise agreement barred Choice from initiating arbitration in 2006. Bapu Corp. v. Choice Hotels Int’l, Inc., No. 07-CV-5938, 2008 WL 2559306 (D.N.J. June 24, 2008). However, upon reconsideration, the Court decided that it had overlooked the fact that, in the franchise agreement, the parties had agreed to submit the question of arbitrability itself to an arbitrator. Bapu Corp., 2008 WL 4192056, at *4. Therefore, the Court concluded, it would be improper for it to substitute its judgment for the arbitrator’s judgment with respect to whether the parties had agreed to arbitrate disputes more than three years old. Id. The Court also rejected various other grounds that the appellants had presented as justification for the Court to vacate the arbitration award. Id. at *4-7. The Court therefore granted Choice’s motion to confirm the arbitration award. Id. at *7. The District Court entered judgment on November 20, 2008. Appellants timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291.
II. DISCUSSION
“We review a district court’s denial of a motion to vacate a commercial arbitration award de novo.” Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir.2003); Kaplan v. First Options of Chi., Inc., 19 F.3d 1503, 1509 (3d Cir.1994). Under the Federal Arbitration Act (“FAA”), there is a strong presumption in favor of enforcing arbitration awards. Brentwood Med. Assocs. v. United Mine Workers, 396 F.3d 237, 241 (3d Cir.2005). When parties agree to arbitrate, they agree to do so fully cognizant of the fact that an arbitrator’s decision can only be judicially vacated under exceedingly narrow circumstances. Dluhos, 321 F.3d at 369-70.
Section 10 of the FAA provides in part as follows:
In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration — •
(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
9 U.S.C. § 10(a). The Supreme Coui't has recently held that section 10 of the FAA provides the exclusive grounds for vacatur of an arbitration award. Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576, 584, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008).
A. The Three Year Limitations Period
Appellants argue that the arbitrator’s decision to proceed with arbitration in this case was irrational. Appellants point out that the provisions of the American Arbitration Association (“AAA”) Commercial Rules require an arbitrator to rule on any jurisdictional issues put forth by the parties. Appellants contend that the arbitrator here refused to properly interpret the franchise agreement or apply the law of Maryland to bar Choice’s claim against the appellants. Appellants argue that the contractual limitations period of the agreement required claims to be made within three years of accrual. Similarly, they argue that the general statute of limita*309tions for Maryland, whose law was chosen under the agreement, mandates that a civil action at law shall be filed within three years from the date that it accrues. Appellants argue that Choice’s claim accrued in 2000, when the appellants failed to complete renovations to the hotel before the deadline set in the agreement. Therefore, appellants argue, Choice’s claim brought in 2006 was barred by the three-year limitations period. Appellants argue that the arbitrator manifestly disregarded the law by failing to address the jurisdictional issue and that the District Court erred in declining to vacate the arbitration award in light of what appellants considered was the arbitrator’s manifest disregard of the law.
Choice responds that the arbitrator not only addressed the issue of jurisdiction in his preliminary rulings, but also allowed the appellants to renew objections to his jurisdiction. Choice contends, moreover, that appellants abandoned the jurisdictional dispute when they failed to renew their objections or even attend the arbitration. Choice argues that appellants would have us re-weigh and re-examine evidence presented to the arbitrator to reach a different conclusion on whether Choice’s claim was barred. Choice contends that the FAA does not allow us to do so.
Preliminarily, the parties dispute whether an arbitrator’s manifest disregard of the law may independently support a decision to vacate an arbitration award following the Supreme Court’s decision in Hall Street. In Hall Street, the Court held that under the FAA, section 10 of the Act provides the exclusive grounds for vacatur of an arbitration award. Id. at 586. It did not, however, expressly decide whether the judicially created doctrine allowing vacatur of an arbitration award for manifest disregard of the law by an arbitrator would continue to exist as an independent basis for vacatur. While our sister circuits are split on this question, we have yet rule on it. See Andorra Services Inc. v. Venfleet, Ltd., No. 08-4902, 2009 WL 4691635 at *4 n. 5 (3d Cir. Dec.10, 2009). However, we see no need to decide the issue here because this case does not present one of those “exceedingly narrow” circumstances supporting a vacatur based on manifest disregard of the law. See Metromedia Energy, Inc. v. Enserch Energy Servs., Inc., 409 F.3d 574, 578 (3d Cir.2005) (“Vacatur is appropriate only in ‘exceedingly narrow’ circumstances, such as where arbitrators are partial or corrupt, or where an arbitration panel manifestly disregards, rather than merely erroneously interprets, the law.”). Here, the arbitrator, while denying the appellants’ initial motion on the limitations issue as premature, also made clear to the appellants that they were allowed to raise the issue again once the record was more complete. Appellants failed to do so and therefore waived the issue. There is nothing in the record to indicate that the arbitrator disregarded the law. See Dluhos, 321 F.3d at 370 (stating that even an erroneous interpretation of the law is insufficient basis for vacatur). Further, appellants have presented no evidence to demonstrate that the arbitrator, in deciding to arbitrate this case, exceeded his power or violated any other grounds under section 10 of the FAA. We thus agree with the District Court that the question of arbitrability was one for the arbitrator to decide and that appellants’ arguments regarding the arbitrator’s jurisdiction over the case do not present grounds for vacatur of the arbitrator’s decision.
B. Arbitrator’s Bias or Corruption
Appellants argue that the arbitrator was biased toward Choice. They note that the arbitrator was previously a partner in a law firm that had represented a company in which Choice’s present chief executive officer was a board member. *310They argue that the arbitrator knew of that fact when he was selected as the arbitrator for this case by the AAA, but did not disclose this to the appellants. Appellants note that the arbitrator even communicated with them concerning the present case through his former law firm’s fax machine. Given these facts, appellants argue, the District Court erred when it did not vacate the arbitrator’s award based on evident bias.
Choice responds that the arbitrator is a well-regarded state judge and is highly credible. Choice contends that appellants have presented no evidence to prove that the arbitrator was aware of the tangential connection and misrepresented it to the appellants. In fact, Choice notes, the arbitrator did conduct a conflicts check and found no potential conflicts prior to the arbitration. Choice also points out that appellants accepted the arbitrator’s findings and never raised the issue during the arbitration. Choice argues that the District Court properly found the connection to be too attenuated to give any appearance of bias.
We agree with the District Court that appellants failed to demonstrate an “evident partiality” on part of the arbitrator necessary to vacate an award under 9 U.S.C. § 10(a)(2). We have held that in order to meet this standard, the movant must demonstrate that a reasonable person would have concluded that the arbitrator was partial to the opposing party at the arbitration. Kaplan, 19 F.3d at 1523 n. 30 (citation omitted). In other words, the evidence presented to the court must be “powerfully suggestive of bias.” Id. We disagree with appellants that proof of a remote link between the arbitrator’s former law firm and Choice, one that the arbitrator was likely unaware of at the time of arbitration, constitutes such strong evidence. See Apperson v. Fleet Carrier Corp., 879 F.2d 1344, 1358 (6th Cir.1989) (proof of actual bias, not merely an appearance of bias is necessary to invalidate an arbitrator’s award). Furthermore, appellants refused to participate in the arbitration or present any arguments to the arbitrator on the merits of their case. The arbitrator relied on arguments and evidence presented by Choice in coming to his decision, and there is no evidence to suggest that the arbitrator’s decision was motivated by bias. The District Court properly rejected appellants’ argument that section 10(a)(2) of the FAA required vacatur of the arbitrator’s award in this case.
C. Improper Service of the Demand for Arbitration
Appellants argue that the arbitration was commenced improperly because appellant Bapu was never served with the October 19, 2006 arbitration demand. It is undisputed that Choice instead served the demand on a different entity with the same name in Georgia. Appellant Harshad Patel was therefore the only party to the case who received the demand. Appellants contend that these facts were never revealed during the arbitration and that the arbitrator had no jurisdiction over at least one of the appellants. Appellants argue that the District Court erred when it found the incorrect service to be an innocent mistake. According to the appellants, a lack of jurisdiction over one of the parties to the arbitration should qualify as a ground for vacatur under section 10(a)(1) of the FAA.
Choice responds that mere inadvertent service of a demand for arbitration on the wrong entity does not constitute fraud. It represents that it made an honest clerical mistake. However, it notes that Patel, the president of Bapu, was indeed served with the demand and had notice that Choice’s claim was against both appellants. Choice *311further notes that Patel is the company’s designated representative and the signatory to the agreement between the parties. Choice also points out that both appellants did initially participate in the arbitration. Therefore, Choice argues, the District Court properly found that appellants suffered no prejudice from its mistake.
We agree with the District Court that Choice’s failure to serve Bapu does not suffice to vacate the arbitrator’s award under section 10(a)(1) of the FAA. In reviewing cases under section 10(a), other circuits have relied upon a three-prong test to determine whether an arbitration award should be vacated for fraud. Bonar v. Dean Witter Reynolds, Inc., 835 F.2d 1378, 1383 (11th Cir.1988). Under that test, the movant must establish (1) by clear and convincing evidence, (2) fraud that was not discoverable through the exercise of due diligence prior to or during the arbitration, and (3) was materially related to an issue in the arbitration. Id. Here, appellants have failed to satisfy any of the three prongs of this test. There is no evidence whatsoever to support appellants argument that Choice fraudulently served the arbitration demand on the wrong entity. Moreover, given that both appellants did initially participate in the arbitration, Choice’s mistake in serving the wrong entity did not implicate any of the issues decided at the arbitration.
III. CONCLUSION
For the foregoing reasons, we will affirm the District Court’s order confirming the arbitration award. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478562/ | 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/8478564/ | 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/8478568/ | 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/8478569/ | 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/8478573/ | SUMMARY ORDER
Holly Stanton appeals from the district court’s affirmance of the Social Security Commissioner’s denial of disability insurance benefits. “We review the administrative record de novo to determine whether there is substantial evidence supporting the Commissioner’s decision and whether the Commissioner applied the correct legal standard.” Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir.2009) (internal quotation marks and alteration omitted); see also 42 U.S.C. § 405(g) (making Commissioner’s factual findings conclusive if supported by substantial evidence). “Substantial evidence ... means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 507 (2d Cir.2009) (internal quotation marks omitted). In undertaking this review, we assume the parties’ familiarity with the facts and procedural history, which we reference only as necessary to explain our decision.
1. The Step Two Assessment
Stanton submits that the administrative law judge (“ALJ”) erred at the second of the five steps of analysis used to determine disability, see 20 C.F.R. § 404.1520(a)(4), by failing to recognize that she suffered from disc herniation constituting a severe impairment. Stanton waived this argument by not raising it in the district court. See Poupore v. Astrue, 566 F.3d at 306. Although Stanton contends that she preserved the argument by “alleging] disability based upon herniated cervical discs,” Appellant’s Reply Br. at 2, the record is to the contrary. The references to disc herniation in Stanton’s opening brief to the district court are embedded in highly technical, factual discussion. No such reference appears as part of her argument to the court. Thus, although Magistrate Judge Bianchini twice referenced disc herniation in his report to the district court, he did not identify ALJ error at step two because Stanton had not raised such a claim. Moreover, Stanton did not complain of any omission in her various objections to the district court. Accordingly, we deem the argument waived.1
*234
2.Stanton’s Residual Functional Capacity
Stanton contends that the ALJ erred in determining that she had the residual functional capacity (“RFC”) to work as a circuit board assembler. Because the onset date of Stanton’s claimed impairment is October 5, 2004, she bore the burden of proving otherwise. See Clarification of Rules Involving Residual Functional Capacity Assessments, 68 Fed. Reg. 51, 153, 51, 154-55 (Aug. 26, 2003); see also Poupore v. Astrue, 566 F.3d at 306 (observing that even at step five, “the Commissioner need only show that there is work in the national economy that the claimant can do; he need not provide additional evidence of the claimant’s residual functional capacity”).
Stanton nevertheless faults the ALJ for failing to cite medical evidence to support his RFC determination and to provide the requisite narrative discussion of RFC. See Assessing Residual Functional Capacity in Initial Claims, SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996). She further complains that the ALJ failed to follow the treating physician rule. See 20 C.F.R. § 404.1527(d)(2). We are not persuaded.
The record shows that the ALJ considered the medical opinions of treating physician Dr. Norman Lasda and consulting-physician Dr. Kalyani Ganesh. Because Dr. Lasda’s opinion was unsupported by objective clinical evidence and contradicted by his own records, the examination report of Dr. Ganesh, the report of a state agency disability analyst, and Stanton’s own account of her range of activities, the ALJ did not err in declining to accord it controlling weight. See Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.2004) (observing that treating physician’s opinion “is not afforded controlling weight” where it is “not consistent with other substantial evidence in the record, such as the opinions of other medical experts”); cf. 20 C.F.R. § 404.1527(d)(2) (according controlling weight to treating physician’s opinion if “well-supported by medically acceptable clinical and laboratory diagnostic techniques and ... not inconsistent with other substantial evidence in ... case record”). Indeed, the noted contradictory evidence provides the requisite substantial support for the Commissioner’s RFC determination.
3. The Adverse Credibility Assessment
Stanton faults the ALJ’s adverse credibility finding as to her claim of disabling pain. “It is the function of the [Commissioner], not the [reviewing courts], to resolve evidentiary conflicts and to appraise the credibility of witnesses, including the claimant.” Aponte v. Sec’y, Dep’t of Health & Human Servs., 728 F.2d 588, 591 (2d Cir.1984) (second alteration in original) (internal quotation marks omitted). We have no reason to second-guess the credibility finding in this case where the ALJ identified specific record-based reasons for his ruling. See Assessing the Credibility of an Individual’s Statements, SSR 96-7p, 61 Fed.Reg. 34,483, 34,486 (July 2, 1996). For example, the ALJ noted the discrepancy between Stanton’s asserted inability to move her neck and her testimony that she was able to drive and perform household chores. No different conclusion is warranted by the ALJ’s failure to reference specifically Stanton’s good work history, because substantial evidence aside from work history supports the adverse credibility ruling. See Schaal v. Apfel, 134 F.3d 496, 502 (2d Cir.1998).
4. Stanton’s 2006 Work Activity
Stanton asserts, without citation to any precedent, that her 2006 work assembling circuit boards from home should have been viewed as a “trial work period” not bearing on her disability claim. In fact, the relevant statutes and regulations do not support this argument. They pro*235vide that when a person “becomes entitled to disability insurance benefits,” 42 U.S.C. § 422(c)(3) (emphasis added), she may “test [her] ability to work and still be considered disabled,” 20 C.F.R. § 404.1592(a). During the trial period, “any services rendered by an individual ... shall be deemed not to have been rendered by such individual in determining whether [her] disability has ceased in a month during such period.” 42 U.S.C. § 422(c)(2) (emphasis added); see also 20 C.F.R. § 404.1592(a). Here, the ALJ did not use evidence of Stanton’s 2006 work activity for the prohibited purpose of determining if a disability had ceased. Rather, the ALJ used the evidence to evaluate the consistency and credibility of Stanton’s claim of the commencement of a disability. Whatever arguments might be advanced for encouraging trial work periods by persons uncertain as to their disability status, until Congress provides otherwise, we identify no error in an ALJ considering evidence of work activity in deciding an initial disability claim. As we observed in Gold v. Secretary of Health, Education & Welfare, an ALJ considering a disability claim has a duty “to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.” 463 F.2d 38, 43 (2d Cir.1972) (internal quotation marks omitted)
5. Past Relevant Work
Stanton submits that the ALJ erred in determining that she had the RFC to perform her past relevant work as a circuit board assembler without consulting a vocational expert. Because substantial evidence supports the ALJ’s RFC determination — notably, Stanton’s actual performance of circuit board assembly work during the period of alleged disability — -we conclude that the opinion of a vocational expert was not required. Cf 20 C.F.R. § 404.1560(b)(2) (observing that ALJs “may use the services of vocational experts” to obtain evidence necessary to help determine whether claimant can do past relevant work (emphasis added)). Accordingly, we identify no merit in this challenge. See id. § 404.1560(b)(3) (stating that person found to “have the residual functional capacity to do [her] past relevant work” will be found “not disabled”).
We have considered Stanton’s remaining arguments on appeal and conclude that they lack merit. Accordingly, we AFFIRM the judgment of the district court.
. Even if we were to reach the merits of Stanton's argument, we would not identify error warranting remand because the ALJ did identify severe impairments at step two, so that Stanton's claim proceeded through the sequential evaluation process. Further, contrary to Stanton's argument, the ALJ’s decision makes clear that he considered the "combination of impairments" and the combined effect of "all symptoms” in making his determination. ALJ Op. at 5; see also 42 U.S.C. § 423(d)(2)(B) (requiring consideration of "combined effect of all of the individual’s impairments”); accord 20 C.F.R. § 404.1523. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478577/ | 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/8478581/ | 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/8478585/ | 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/8478587/ | 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/8478589/ | 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/8478593/ | 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/8478596/ | *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/8478732/ | 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/8478738/ | OPINION OF THE COURT
LOURIE, Circuit Judge.
Bapu Corporation (“Bapu”) and its president, Harshad S. Patel (collectively, “appellants”) appeal from the decision of the United States District Court for the District of New Jersey denying appellants’ motion to vacate an arbitration award to Choice Hotels International, Inc. (“Choice”). Bapu Corp. v. Choice Hotels Int’l, Inc., No. 07-CV-5938, 2008 WL 4192056 (D.N.J. Sept. 8, 2008). Because appellants have failed to show that the District Court erred in its decision, we will affirm.
I. BACKGROUND
In 2000, the appellants entered into a franchise agreement with Choice allowing them to open and operate a hotel under the name Quality Inn. The agreement required appellants to renovate the building that they were leasing before they could operate it as a Quality Inn. Under the agreement, all renovations were to be completed by November 30, 2000. Appellants failed to make the required renovations by the deadline. Soon thereafter, Choice offered to extend the deadline for a fee. Choice contends it sent two such offers to the appellants. The first offer was sent on May 8, 2001, allowing the appellants an extension until September 28, 2001 to complete the renovations. The second offer was sent on October 16, 2001, extending the renovation deadline for another three months, until January 16, 2002. The appellants contend that they did not receive the first offer, and agree that they did not accept the second offer. Between 2002 and 2004, Choice sent default notices to the appellant, threatening termination of the contract unless appellants completed the renovation. On November 15, 2004, Choice finally sent appellants a notice of termination, stating that the contract had been terminated and that Choice was entitled to damages.
On October 19, 2006, Choice served Patel with a demand for arbitration, seeking recovery of damages sustained due to the breach of the franchise agreement by both Patel and Bapu. Appellants responded and objected to the arbitration on several grounds, including that it was barred by the statute of limitations applicable to the franchise agreement under Maryland law. Following their preliminary filing, appellants declined to participate in the arbitration. On December 13, 2007, the arbitrator conducted an arbitration hearing to consider the evidence in the case. Appellants failed to appear for the hearing. Instead, the appellants filed a complaint against Choice in the District Court of New Jersey. Appellants moved the Court to enjoin further arbitration proceedings, which it denied.
On January 9, 2008, the arbitrator issued his decision, awarding damages to Choice in the amount of $142,560 and costs in the amount of $7,975. Appellants moved the District Court to vacate the arbitration award. The Court initially granted appellants’ motion to vacate the arbitration award, reasoning that the three-year period of limitations in the fran*308chise agreement barred Choice from initiating arbitration in 2006. Bapu Corp. v. Choice Hotels Int’l, Inc., No. 07-CV-5938, 2008 WL 2559306 (D.N.J. June 24, 2008). However, upon reconsideration, the Court decided that it had overlooked the fact that, in the franchise agreement, the parties had agreed to submit the question of arbitrability itself to an arbitrator. Bapu Corp., 2008 WL 4192056, at *4. Therefore, the Court concluded, it would be improper for it to substitute its judgment for the arbitrator’s judgment with respect to whether the parties had agreed to arbitrate disputes more than three years old. Id. The Court also rejected various other grounds that the appellants had presented as justification for the Court to vacate the arbitration award. Id. at *4-7. The Court therefore granted Choice’s motion to confirm the arbitration award. Id. at *7. The District Court entered judgment on November 20, 2008. Appellants timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291.
II. DISCUSSION
“We review a district court’s denial of a motion to vacate a commercial arbitration award de novo.” Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir.2003); Kaplan v. First Options of Chi., Inc., 19 F.3d 1503, 1509 (3d Cir.1994). Under the Federal Arbitration Act (“FAA”), there is a strong presumption in favor of enforcing arbitration awards. Brentwood Med. Assocs. v. United Mine Workers, 396 F.3d 237, 241 (3d Cir.2005). When parties agree to arbitrate, they agree to do so fully cognizant of the fact that an arbitrator’s decision can only be judicially vacated under exceedingly narrow circumstances. Dluhos, 321 F.3d at 369-70.
Section 10 of the FAA provides in part as follows:
In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration — •
(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
9 U.S.C. § 10(a). The Supreme Coui't has recently held that section 10 of the FAA provides the exclusive grounds for vacatur of an arbitration award. Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576, 584, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008).
A. The Three Year Limitations Period
Appellants argue that the arbitrator’s decision to proceed with arbitration in this case was irrational. Appellants point out that the provisions of the American Arbitration Association (“AAA”) Commercial Rules require an arbitrator to rule on any jurisdictional issues put forth by the parties. Appellants contend that the arbitrator here refused to properly interpret the franchise agreement or apply the law of Maryland to bar Choice’s claim against the appellants. Appellants argue that the contractual limitations period of the agreement required claims to be made within three years of accrual. Similarly, they argue that the general statute of limita*309tions for Maryland, whose law was chosen under the agreement, mandates that a civil action at law shall be filed within three years from the date that it accrues. Appellants argue that Choice’s claim accrued in 2000, when the appellants failed to complete renovations to the hotel before the deadline set in the agreement. Therefore, appellants argue, Choice’s claim brought in 2006 was barred by the three-year limitations period. Appellants argue that the arbitrator manifestly disregarded the law by failing to address the jurisdictional issue and that the District Court erred in declining to vacate the arbitration award in light of what appellants considered was the arbitrator’s manifest disregard of the law.
Choice responds that the arbitrator not only addressed the issue of jurisdiction in his preliminary rulings, but also allowed the appellants to renew objections to his jurisdiction. Choice contends, moreover, that appellants abandoned the jurisdictional dispute when they failed to renew their objections or even attend the arbitration. Choice argues that appellants would have us re-weigh and re-examine evidence presented to the arbitrator to reach a different conclusion on whether Choice’s claim was barred. Choice contends that the FAA does not allow us to do so.
Preliminarily, the parties dispute whether an arbitrator’s manifest disregard of the law may independently support a decision to vacate an arbitration award following the Supreme Court’s decision in Hall Street. In Hall Street, the Court held that under the FAA, section 10 of the Act provides the exclusive grounds for vacatur of an arbitration award. Id. at 586. It did not, however, expressly decide whether the judicially created doctrine allowing vacatur of an arbitration award for manifest disregard of the law by an arbitrator would continue to exist as an independent basis for vacatur. While our sister circuits are split on this question, we have yet rule on it. See Andorra Services Inc. v. Venfleet, Ltd., No. 08-4902, 2009 WL 4691635 at *4 n. 5 (3d Cir. Dec.10, 2009). However, we see no need to decide the issue here because this case does not present one of those “exceedingly narrow” circumstances supporting a vacatur based on manifest disregard of the law. See Metromedia Energy, Inc. v. Enserch Energy Servs., Inc., 409 F.3d 574, 578 (3d Cir.2005) (“Vacatur is appropriate only in ‘exceedingly narrow’ circumstances, such as where arbitrators are partial or corrupt, or where an arbitration panel manifestly disregards, rather than merely erroneously interprets, the law.”). Here, the arbitrator, while denying the appellants’ initial motion on the limitations issue as premature, also made clear to the appellants that they were allowed to raise the issue again once the record was more complete. Appellants failed to do so and therefore waived the issue. There is nothing in the record to indicate that the arbitrator disregarded the law. See Dluhos, 321 F.3d at 370 (stating that even an erroneous interpretation of the law is insufficient basis for vacatur). Further, appellants have presented no evidence to demonstrate that the arbitrator, in deciding to arbitrate this case, exceeded his power or violated any other grounds under section 10 of the FAA. We thus agree with the District Court that the question of arbitrability was one for the arbitrator to decide and that appellants’ arguments regarding the arbitrator’s jurisdiction over the case do not present grounds for vacatur of the arbitrator’s decision.
B. Arbitrator’s Bias or Corruption
Appellants argue that the arbitrator was biased toward Choice. They note that the arbitrator was previously a partner in a law firm that had represented a company in which Choice’s present chief executive officer was a board member. *310They argue that the arbitrator knew of that fact when he was selected as the arbitrator for this case by the AAA, but did not disclose this to the appellants. Appellants note that the arbitrator even communicated with them concerning the present case through his former law firm’s fax machine. Given these facts, appellants argue, the District Court erred when it did not vacate the arbitrator’s award based on evident bias.
Choice responds that the arbitrator is a well-regarded state judge and is highly credible. Choice contends that appellants have presented no evidence to prove that the arbitrator was aware of the tangential connection and misrepresented it to the appellants. In fact, Choice notes, the arbitrator did conduct a conflicts check and found no potential conflicts prior to the arbitration. Choice also points out that appellants accepted the arbitrator’s findings and never raised the issue during the arbitration. Choice argues that the District Court properly found the connection to be too attenuated to give any appearance of bias.
We agree with the District Court that appellants failed to demonstrate an “evident partiality” on part of the arbitrator necessary to vacate an award under 9 U.S.C. § 10(a)(2). We have held that in order to meet this standard, the movant must demonstrate that a reasonable person would have concluded that the arbitrator was partial to the opposing party at the arbitration. Kaplan, 19 F.3d at 1523 n. 30 (citation omitted). In other words, the evidence presented to the court must be “powerfully suggestive of bias.” Id. We disagree with appellants that proof of a remote link between the arbitrator’s former law firm and Choice, one that the arbitrator was likely unaware of at the time of arbitration, constitutes such strong evidence. See Apperson v. Fleet Carrier Corp., 879 F.2d 1344, 1358 (6th Cir.1989) (proof of actual bias, not merely an appearance of bias is necessary to invalidate an arbitrator’s award). Furthermore, appellants refused to participate in the arbitration or present any arguments to the arbitrator on the merits of their case. The arbitrator relied on arguments and evidence presented by Choice in coming to his decision, and there is no evidence to suggest that the arbitrator’s decision was motivated by bias. The District Court properly rejected appellants’ argument that section 10(a)(2) of the FAA required vacatur of the arbitrator’s award in this case.
C. Improper Service of the Demand for Arbitration
Appellants argue that the arbitration was commenced improperly because appellant Bapu was never served with the October 19, 2006 arbitration demand. It is undisputed that Choice instead served the demand on a different entity with the same name in Georgia. Appellant Harshad Patel was therefore the only party to the case who received the demand. Appellants contend that these facts were never revealed during the arbitration and that the arbitrator had no jurisdiction over at least one of the appellants. Appellants argue that the District Court erred when it found the incorrect service to be an innocent mistake. According to the appellants, a lack of jurisdiction over one of the parties to the arbitration should qualify as a ground for vacatur under section 10(a)(1) of the FAA.
Choice responds that mere inadvertent service of a demand for arbitration on the wrong entity does not constitute fraud. It represents that it made an honest clerical mistake. However, it notes that Patel, the president of Bapu, was indeed served with the demand and had notice that Choice’s claim was against both appellants. Choice *311further notes that Patel is the company’s designated representative and the signatory to the agreement between the parties. Choice also points out that both appellants did initially participate in the arbitration. Therefore, Choice argues, the District Court properly found that appellants suffered no prejudice from its mistake.
We agree with the District Court that Choice’s failure to serve Bapu does not suffice to vacate the arbitrator’s award under section 10(a)(1) of the FAA. In reviewing cases under section 10(a), other circuits have relied upon a three-prong test to determine whether an arbitration award should be vacated for fraud. Bonar v. Dean Witter Reynolds, Inc., 835 F.2d 1378, 1383 (11th Cir.1988). Under that test, the movant must establish (1) by clear and convincing evidence, (2) fraud that was not discoverable through the exercise of due diligence prior to or during the arbitration, and (3) was materially related to an issue in the arbitration. Id. Here, appellants have failed to satisfy any of the three prongs of this test. There is no evidence whatsoever to support appellants argument that Choice fraudulently served the arbitration demand on the wrong entity. Moreover, given that both appellants did initially participate in the arbitration, Choice’s mistake in serving the wrong entity did not implicate any of the issues decided at the arbitration.
III. CONCLUSION
For the foregoing reasons, we will affirm the District Court’s order confirming the arbitration award. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478740/ | OPINION OF THE COURT
NYGAARD, Circuit Judge.
Angela Hall filed an employment discrimination action against her employer, Appellant Treasure Bay Virgin Islands Corporation, under Title VII and 42 U.S.C. § 1981 alleging breach of contract, bad faith, unfair dealing and negligent and intentional infliction of emotion distress. Treasure Bay filed a motion to compel arbitration Hall opposed the motion, arguing that Treasure Bay’s hourly employee agreement was both procedurally and substantively unconscionable and, as such, was unenforceable.
The District Court found that several provisions of Treasure Bay’s employment agreement were substantively unconscionable and that this unconscionability so infected the agreement that severability was impossible. It denied the motion to compel arbitration. We will affirm.
I.
Treasure Bay argues on appeal that the District Court erred by three specific holdings: first, that the “loser pays” provision of the employment agreement was unconscionable; second, that the agreement’s “constraint” provision was substantively unconscionable; and third, assuming these provisions were unconscionable, that they could not be severed from the agreement. We will review each claim.
A. The “Loser Pays” Provision
The employment agreement at issue here contains a provision that required the non-prevailing party at arbitration to *313pay the costs of the arbitration, should the arbitrator so order. The District Court found this provision of the agreement to be substantively unconscionable.
Our jurisprudence regarding the costs of arbitration originates from the Supreme Court’s opinion in Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000), where the Supreme Court held that although costs of arbitration might be so high as to prevent a party “from effectively vindicating her federal statutory rights in the arbitral forum,” the mere absence of a provision governing costs in an arbitration agreement is not sufficient to make the agreement unenforceable. A party seeking to “invalidate an arbitration agreement on the ground that arbitration would be prohibitively expensive ... bears the burden of showing the likelihood of incurring such costs.” Id. at 92, 121 S.Ct. 513. We have also consistently held that to meet this burden, a plaintiff must (1) come forward with some evidence to show the projected fees that would apply to them specific arbitrations, and (2) show the party’s inability to pay those costs. Parilla v. IAP Worldwide Serv., 368 F.3d 269, 283-85 (3d Cir.2004); Alexander v. Anthony Int’l, L.P., 341 F.3d 256, 268-69 (3d Cir.2003). Thus, a party seeking to declare a provision awarding arbitration costs unenforceable must proffer some credible and substantiated evidence of that party’s financial situation as well as the specific costs of arbitration. See Blair v. Scott Specialty Gases, 283 F.3d 595, 607 (3d Cir.2002); Parilla, 368 F.3d at 284. Hall has done so here although, as the District Court recognized, just barely. Hall submitted evidence to the District Court regarding the costs of the proposed arbitration and Treasure Island did not dispute this evidence. She also submitted evidence of her financial status at the time she signed the agreement, earning eight dollars an hour. The District Court found that, based on this evidence, the possibility of having to pay the entire costs associated with an arbitration would discourage Hall from filing a meritorious claim, given her personal financial situation. We agree and indeed have held that the “prospect that the employee may have to pay the entire amount of an arbitrator’s fees and expenses may serve to chill her willingness to bring a claim.” Parilla, 368 F.3d at 284. It was not error to find this provision of the arbitration agreement to be substantively unconscionable.
B. The “Constraint” Provision
The arbitration agreement at issue here contained a provision which provides that
[t]he arbitrator, in rendering a decision, may uphold the actions of the Company or may grant relief to Employee. If the arbitrator finds that disciplinary action was merited, the arbitrator may not alter or amend the form of disciplinary action imposed by the company. •
App. 26. The District Court found this provision substantively unconscionable and we agree. Indeed, this provision is contrary to the rules of the American Arbitration Association, which state that “ ‘[t]he arbitrator may grant any remedy or relief which the Arbitrator deems just and equitable within the scope of the agreement of the parties.’ ” Brown v. Coleman Co., Inc., 220 F.3d 1180, 1183 (10th Cir.2000) citing AAA Employment Disputes Rule 34(d). The Supreme Court has held that “though the arbitrator’s decision must draw its essence from the agreement, she or he ‘is to bring his informed judgment to bear in order to reach a fair solution of a problem. This is especially true when it comes to formulating remedies.’” United Papenvorkers Intern. Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 41, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987) (quoting United *314Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960)) (emphasis in original). An arbitrator is authorized, therefore, to disagree with the sanction imposed for employee misconduct. The constraining provision here improperly limits an arbitrator’s abilities to craft an appropriate remedy and the District Court did not err by finding it substantively unconscionable.
C. Severability
The Federal Arbitration Act establishes a “strong federal policy in favor of the resolution of disputes through arbitration.” Alexander v. Anthony Intern., L.P., 341 F.3d 256, 263 (3d Cir.2003) (citing Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)). However, where an arbitration agreement contains provisions that are unconscionable — and thereby unenforceable — we must decide whether to sever the offending provisions from the remainder of the agreement or whether enforcement of the arbitration agreement should be denied in toto. Severance of unenforceable provisions of a contract is appropriate where the provisions are not “an essential part of the agreed exchange.” Spinetti v. Service Corp. Intern., 324 F.3d 212, 214 (3d Cir.2003). Where the unconscionable provisions “permeate the agreement ... and thoroughly taint its central purpose of requiring the arbitration of employment disputes, severance is inappropriate and the agreement should not be enforced.” Alexander, 341 F.3d at 271. We will not give effect to an agreement to arbitrate that is afflicted by fundamental and pervasive unfairness. Id.
Here, the District Court found two unconscionable provisions — (1) the “Loser Pays” provision and (2) the provision constraining the arbitrator’s ability to fashion an appropriate remedy in disciplinary matters. Treasure Island did not dispute that the agreement’s requirement that an employee notify an employer within thirty days of a claim arising thereunder is unconscionable. See Patilla, 368 F.3d at 277. Treasure Bay also conceded that the agreement’s provision requiring each party to bear its own arbitration costs and expenses (other than arbitrator’s fees and expenses), including attorneys fees, was unconscionable. Id. at 278.
Under our case law, a series of unconscionable provisions in an arbitration agreement will preclude severance and enforcement of the arbitration agreement if they evidence a deliberate attempt by an employer to impose an arbitration scheme that is designed to discourage an employee from arbitration or to produce results biased in the employer’s favor. Id. The mere existence of unconscionable provisions does not compel a finding of serious misconduct. Id. at 289 (“[S]everability requires more than a count of the unconscionable provisions.”).
That determination hinges on whether the number of provisions and the degree of unfairness support the inference that the employer was not seeking a bona fide mechanism for dispute resolution, but instead sought to impose a scheme that it knew or should have known would provide it with an unfair advantage over its employee. We think such an inference is well supported here and the District Court did not err by refusing to sever the unconscionable provisions from the agreement. The provision requiring employees to bear their own costs and fees provides Treasure Island with an unfair advantage, which is even further enhanced by the provisions requiring the losing party to pay the arbitrator’s costs, and the provision which limits the arbitrator’s abilities to fashion an appropriate remedy.
*315ii.
We will affirm the District Court’s order denying Treasure Bay’s motion to compel arbitration, and remand the cause to the District Court for further proceedings. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478743/ | OPINION
PER CURIAM.
In March 2009, Appellant Wanda Gass filed a pro se complaint in the District Court against New Jersey Division of Youth and Family Services (“DYFS”) caseworkers, attorneys from the New Jersey Attorney General’s and Public Defender’s offices, and a New Jersey Superior Court judge. The complaint, alleging that the defendants conspired to harass her and keep her separated from two minors whom she claimed are her children, sought $500,000 in damages. Although the complaint did not name DYFS as a defendant, the summons was addressed to, and apparently served upon, that entity.
After obtaining a court-ordered extension of time to respond to the complaint, DYFS moved to dismiss pursuant to Fed. R.Civ.P. 12(b)(6). On September 3, 2009, the District Court entered an order granting the motion. The court, construing the action as proceeding under 42 U.S.C. § 1983,1 held that the complaint violated Fed.R.Civ.P. 8(a)’s pleading requirements because it “provides defendants with no indication of which constitutional rights they have allegedly violated.” (Dist. Ct. Op. at 5.) The court concluded that amending the complaint would be futile, as Gass could not recover money damages against DYFS or the named defendants. The court noted that, to the extent Gass sought to challenge New Jersey state court orders regarding custody of the two minors, the Rooker-Feldman doctrine barred any such *316claim. Moreover, the court stated that the Anti-Injunction Act, 28 U.S.C. § 2283, barred it from intervening in state court proceedings. Gass now appeals from the District Court’s judgment.2
For substantially the reasons set forth in the District Court’s thorough and cogent opinion, we find no error in the court’s decision granting DYFS’s motion to dismiss. Contrary to Gass’s assertion, the District Court did not base its decision on “undocumented statements” or hearsay. Her remaining arguments fail as well.3 Accordingly, we will affirm the District Court’s judgment. Gass’s motion to expand the record is denied.
. The court, noting that Gass had seemingly attempted to proceed pursuant to several criminal statutes (18 U.S.C. §§ 241, 242, and 245), concluded that § 1983 was "the proper vehicle for bringing her civil constitutional violation claims.” (Dist. Ct. Op. at 2 n. 2.)
. We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the District Court’s decision granting DYFS's motion to dismiss. See AT & T Corp. v. JMC Telecom, LLC, 470 F.3d 525, 530 (3d Cir.2006).
. Gass has not shown that the District Court abused its discretion in granting DYFS's motion for an extension of time to respond to her complaint. See Planned Parenthood of Cent. N.J. v. Att’y Gen. of N.J., 297 F.3d 253, 259 (3d Cir.2002). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478595/ | FUENTES, Circuit Judge, concurring.
I agree with the majority opinion that the trial judge’s comments during Smith’s testimony were inappropriate. I write separately to emphasize an additional prejudicial comment by the trial judge that I believe affected the fairness of Williams’s trial. At trial, Makeda Petersen was called as a witness to testify by the Government, and she testified that Williams was not the shooter at the scene. The Government, dissatisfied with her testimony, moved to have Petersen declared a hostile witness under Federal Rule of Evidence 611(c). The court agreed with the Government, and then, in the presence of the jury, stated that it had declared Petersen to be a hostile witness. The trial judge went on to state that the court “deems her to be uncooperative and, evasive, and particularly twice she has rejected questions by the Government calling her.” (Supp App. 865-66 (emphasis added).) The prejudicial effect of remarks like this underscores why courts should not explain evidentiary rulings in the jury’s presence. The trial judge’s characterization of Petersen’s testimony as “uncooperative and evasive” could very well have influenced the jury’s assessment of whether or not to credit her testimony. See Quercia v. United States, 289 U.S. 466, 470, 53 S.Ct. 698, 77 L.Ed. 1321 (1933). In a case such as this, in which the jury heard contradictory accounts of the critical events and its ultimate decision depended upon whether it believed Petersen’s testimony, judicial statements bearing upon the credibility of a witness, such as the trial judge’s characterization of Petersen’s testimony here, could be highly influential. Cf United States v. Anton, 597 F.2d 371, 374 (3d Cir.1979) (“a strongly worded comment by the court questioning the defendant’s credibility may well overbear the jury’s ability to make independent fact findings”). Given that no curative instructions were given with respect to the judge’s statements about Petersen’s testimony, I believe that the judge’s comments concerning Petersen, in addition to those regarding Smith, were sufficiently prejudicial to Williams to require a new trial in this case. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478602/ | OPINION OF THE COURT
STAPLETON, Circuit Judge:
The Federal Aviation Administration (“FAA”) revoked Michael C. Raab’s mechanic’s inspection authorization (“IA”) after an aircraft that he inspected and approved for return to service crashed, killing the pilot. An Administrative Law Judge (“ALJ”) of the National Transportation Safety Board (“NTSB”) affirmed the decision of the FAA, and the full NTSB affirmed the ALJ’s initial determination. Raab petitions for review of the order of the NTSB. We will deny the petition.
*305I.
Raab performed an annual inspection of a Cessna 310Q airplane, civil registration number N8FH (“the Aircraft”), and he documented seventy-seven discrepancies on the Aircraft. Raab refused to sign off on the inspection until the discrepancies were addressed and the necessary repairs were made. Discrepancy number 47 stated “elevator trim barrel worn beyond allowable limits.” This language referred to a part called an elevator trim tab actuator, which is part of an airplane’s flight control system that reduces the aerodynamic forces on the main controls while in flight. When Raab noted discrepancy number 47, he had only visually inspected the actuator, but had yet to perform any tests on it.
Raab used the Cessna 310Q maintenance manual checklist when he performed the inspection, and he entered check marks on the checklist when he finished inspecting each item. On this checklist, which he was using for his own purposes and which was admittedly not meant to convey any information to anyone else, Raab entered a check mark next to “Elevator and Elevator Trim,” meaning that he had inspected the trim tab actuator and found it airworthy.1 This was due to the fact that after he visually inspected the actuator and noted discrepancy number 47, he performed a more detailed inspection and determined that the bearing that was part of the rear horizontal stabilizer on the actuator was indeed within allowable limits.
Five months later, Raab returned to follow up, and he did a walk-around and visually checked all of the items on the discrepancy list. With reference to the elevator trim tab actuator, Raab checked the controls of the Aircraft by hand, but he did not physically inspect the actuator itself, because on his checklist, he had marked it as having already been inspected and found airworthy. . After completing his follow-up work, Raab signed off on the inspection, certified the Aircraft as airworthy, and returned it to service. When the owner of the Aircraft arrived just over a week later to fly it back to his base, however, it crashed shortly after takeoff, killing the owner.
FAA Inspectors Thomas Mancuso and Daniel Spera inspected the wreckage the day after the accident, and Inspector Man-cuso observed that the cables going to the elevator trim tab actuator were crossed, meaning that the part was rigged backwards. If the actuator cables are rigged incorrectly, the control works backwards, so that when the pilot pulls back on the yoke, the actuator tends to pull the yoke forward. Inspector Mancuso could not tell from his inspection when the elevator trim tab actuator and its cables were installed or whether Raab had performed a test during his inspection to determine whether the actuator was functioning properly. After conducting his investigation, Inspector Spera, the reporting inspector for this crash, opined that the accident occurred because the elevator trim tab actuator was rigged incorrectly.
Raab told Inspector Spera that he did not install the elevator trim tab actuator himself, but that ■ instead a mechanic named Kevin Sisti installed the part without Raab’s knowledge, and Raab did not know about this installation until the day after the accident. From this conversation with Raab, Inspector Spera understood that the elevator trim tab actuator was replaced before Raab signed off on the *306inspection. Sisti corroborated this information when he told Inspector Spera that he and his mechanics indeed installed the actuator, that his mechanics rigged the actuator cables, and that this work was done prior to Raab signing off on the inspection, because it was done in preparation for the inspection. Inspector Spera did not find any records in the aircraft maintenance logbook or elsewhere indicating that any work was performed on the Aircraft between the time Raab signed off on the inspection and the time of the crash.
However, there were no entries in the aircraft maintenance logbook indicating that the elevator trim tab actuator was replaced at all, or indicating that a number of other repairs were made to the Aircraft in preparation for the follow-up inspection. The invoice that was prepared for the Aircraft’s owner documenting the work that had been done, though, noted that an actuator was purchased and installed prior to Raab’s second inspection of the Aircraft. Raab did not see this invoice for the annual inspection before he signed off on the Aircraft.
In the end, Inspector Spera opined that while Raab performed a thorough initial inspection of the Aircraft, documenting seventy-seven separate items that needed to be addressed, Raab did not return the Aircraft to service properly, because he did not follow up on these items. Inspector Spera based his opinion on the differences between the Aircraft maintenance logbook, the discrepancy sheets Raab prepared during his initial inspection, and the invoice for the work that was done on the Aircraft in preparation for the follow-up inspection. In Inspector Spera’s opinion, Raab never looked at this paperwork, and instead only asked the mechanics what they did to the Aircraft, and signed off on what they told him. After completing his investigation of the accident, Inspector Spera concluded that Raab was not qualified to hold an IA, based on Raab’s performance concerning the annual inspection of the Aircraft.
The FAA issued an emergency order revoking Raab’s IA, pursuant to the governing statute, 49 U.S.C. § 44709(b). The order alleged that Raab improperly signed off on an annual inspection on the aircraft and approved its return to service when the aircraft was in an unairworthy condition, in violation of 14 C.F.R. §§ 43.13(a), 43.13(b), and 43.15(a)(1). Raab appealed the FAA’s order to the NTSB, and an ALJ conducted an evidentiary hearing, at which Inspector Mancuso, Inspector Spera, and Raab testified. On the second day of the hearing, Raab testified that two expert witnesses he intended to call were not present, because, according to Raab, the FAA contacted the witnesses’ employer, and the employer threatened to terminate the witnesses if they testified on behalf of Raab. Raab sought to have Inspector Spera’s testimony stricken from the record as a sanction for what he alleged was a deprivation of his due process rights, but after hearing argument on both sides, the ALJ denied Raab’s request. Ultimately, the ALJ affirmed the order of the FAA. Raab appealed to the full NTSB, and the NTSB issued an order denying Raab’s appeal and affirming the initial decision of the ALJ. Raab now petitions this Court for review of the order of the NTSB.
II.
The NTSB had jurisdiction pursuant to 49 U.S.C. §§ 1133 and 44709(d). We have jurisdiction pursuant to 49 U.S.C. §§ 1153 and 44709(f). We review the NTSB’s factual findings according to the “substantial evidence” standard. See 49 U.S.C. §§ 1153(b)(3) and 44709(f). “Substantial evidence is such relevant evidence as a *307reasonable mind might accept as adequate to support a conclusion ... taking into account whatever in the record fairly detracts from its weight.” Ickes v. Fed. Aviation Admin., 299 F.3d 260, 264 (3d Cir. 2002) (per curiam) (internal quotation marks and citations omitted). “The agency’s factual findings ‘may be supported by substantial evidence even though a plausible alternative interpretation of the evidence would support a contrary view.’ ” Dillmon v. Nat’l Transp. Safety Bd., 588 F.3d 1085, 1089 (D.C.Cir.2009) (quoting Chritton v. Nat’l Transp. Safety Bd., 888 F.2d 854, 856 (D.C.Cir.1989)). Furthermore, “we must rely on the ability of the hearing officer to make judgments on witnesses’ credibility.” Air East, Inc. v. Nat’l Transp. Safety Bd., 512 F.2d 1227, 1233 (3d Cir.1975).
We must determine whether or not the agency action is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Dillmon, 588 F.3d at 1089 (quoting 5 U.S.C. § 706(2)(A)). “In evaluating agency action under this standard, we defer to the wisdom of the agency, provided its decision is reasoned and rational, and even uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Id. (internal quotations and citations omitted).
III.
Raab raises three arguments. First, he contends that as a matter of law, 14 C.F.R. § 43.13 does not govern here, because that provision governs “maintenance, alteration or preventative maintenance,” and annual inspections do not fall within the definitions of these terms. Second, Raab contends that the FAA failed to prove that he violated 14 C.F.R. §§ 43.13(a), 43.13(b), or 43.15(a)(1), and therefore that the decision of the NTSB affirming the decision of the ALJ was not supported by substantial evidence. Raab argues that he complied with his inspection requirements, used an appropriate checklist, identified discrepancies, and ensured that the discrepancies were addressed before he signed off on the Aircraft, and thus his conduct conformed to the applicable regulations. Finally, Raab contends that his constitutional due process rights were violated when the FAA contacted Cessna, the employer of his proposed expert witnesses, which allegedly resulted in Cessna threatening to terminate the witnesses if they testified on behalf of Raab. We will address each of these arguments in turn.
A.
The pertinent portions of 14 C.F.R. § 43.13 provide:
Each person performing maintenance, alteration, or preventive maintenance on an aircraft, engine, propeller, or appliance shall use the methods, techniques, and practices prescribed in the current manufacturer’s maintenance manual or Instnictions for Continued Airworthiness prepared by its manufacturer, or other methods, techniques, and practices acceptable to the Administrator____
Each person maintaining or altering, or performing preventive maintenance, shall do that work in such a manner and use materials of such a quality, that the condition of the aircraft, airframe, aircraft engine, propeller, or appliance worked on will be at least equal to its original or properly altered condition (with regard to aerodynamic function, structural strength, resistance to vibration and deterioration, and other qualities affecting airworthiness).
14 C.F.R. § 43.13(a) & (b). Raab contends that because these provisions govern only “maintenance,” “alteration,” and “preven*308tative maintenance,” they are not applicable to him, because he performed an annual inspection, which is not included in the definitions of those terms.
Raab’s argument is without merit. The regulations define “maintenance” as “inspection, overhaul, repair, preservation, and the replacement of parts, [excluding] preventive maintenance.” 14 C.F.R. § 1.1 (emphasis added). By the plain meaning of the regulations, 14 C.F.R. § 48.13 applies to Raab and his inspection of the Aircraft.
B.
In addition to the provisions of 14 C.F.R. § 43.13 quoted above, the regulations provide that “[e]ach person performing an inspection required by part 91, 125, or 135 of this chapter, shall ... [p]erform the inspection so as to determine whether the aircraft; or portion(s) thereof under inspection, meets all applicable airworthiness requirements.” 14 C.F.R. § 43.15(a)(1). The regulations further provide that all repairs to an aircraft must be recorded in the aircraft’s maintenance logbook. 14 C.F.R. § 43.9.
The NTSB has stated that mechanics holding IAs and performing aircraft inspections are held to a high standard of care. See Garrelts, 7 NTSB 208, 1990 NTSB LEXIS 89, at *4 (1990) (stating that “[t]he issue before us is not, strictly speaking, respondent’s technical competence as a mechanic or as an inspector,” but rather whether respondent “possessed] the care, judgment, and responsibility required of the holder of any FAA certificate or authorization related to aircraft maintenance”). In addition, the NTSB has recognized that the FAA’s “evidence must of necessity be circumstantial in cases where an incomplete or improper assembly or repair, and inspection thereof, is not discovered until some time after the act or omission which constitutes the regulatory violation.” Moris & Emerson, 2 NTSB 2102, 1976 NTSB LEXIS 60, at *9 (1976) (citing Smoligan, 1 NTSB 786 (1969)). Finally, the NTSB has held that it is appropriate for FAA inspectors to “rely upon the accuracy of maintenance records to ensure safety of flight.” Bielstein, 2002 NTSB LEXIS 53, at *11-12 (2002).
With these general principles in mind, we hold that substantial evidence supported the NTSB’s order affirming the ALJ’s decision to uphold the FAA’s revocation of Raab’s IA. The evidence showed that Raab identified seventy-seven discrepancies during his initial inspection of the Aircraft, and that one of those discrepancies, discrepancy number 47, related to the elevator trim tab actuator. While it was not Raab’s responsibility to record the work that was done on the actuator, because Raab did not do the work himself, it was his responsibility to ensure that each of the discrepancies was addressed before he signed off on the Aircraft as being airworthy. The fact that the aircraft maintenance log did not include documentation that corrective action had been taken on the actuator should have prompted Raab to inspect the actuator carefully. By failing to verify whether there was documentation to corroborate that the discrepancy related to the elevator trim tab actuator had been repaired, Raab failed to perform the inspection in a manner acceptable to the FAA in violation of 14 C.F.R. §§ 43.13 and 43.15.
Raab contends that he should not be responsible for failing to determine that the elevator trim tab actuator had been installed incorrectly because he was unaware until after the accident that this particular maintenance had been performed. However, as stated above, the absence of any documentation indicating that work had been performed on the actu*309ator — one of the discrepancies Raab identified in his initial inspection — should have prompted Raab to once again check the actuator. In addition, had Raab checked the invoice of the work performed on the Aircraft, he would have seen that work was performed on the actuator. Thus, this argument is not persuasive.
Raab contends also that while he did write up a discrepancy for the elevator trim tab actuator, that documentation was based only on his initial observation, and that based on a subsequent test that he ran, he determined that the actuator was still within limits. Thus, Raab argues, he was not required to inspect the actuator again during his second inspection, because the part was already cleared during his initial inspection. This argument fails as well, because Raab did not annotate the discrepancy list to indicate to the mechanics that the actuator had been cleared, nor did he discuss with the mechanics that it had been cleared. Raab only made a notation on the checklist that he was using during the initial inspection, and Raab admitted that the checklist was for his information only, and was not intended to let anyone else know what had been done. Based on the list of discrepancies that Raab gave to the mechanics, the mechanics reasonably believed that the actuator needed to be repaired, and there is substantial evidence that the actuator was indeed repaired prior to Raab’s second inspection of the Aircraft. The work invoice for the Aircraft showed that the actuator work was performed before Raab’s second inspection, and Sisti told Inspector Spera that the work was done before the second inspection, because it was done in preparation for that inspection.
Based on the foregoing facts and circumstances, we conclude that the Board’s order was supported by substantial evidence.
C.
Raab’s final argument is that the FAA violated his constitutional due process rights when it contacted the employer of his proposed expert witnesses, which allegedly ultimately resulted in Raab being deprived of the testimony of these witnesses on his behalf.
“[D]ue process requires that an individual receive ‘an opportunity to be heard at a meaningful time and in a meaningful manner.’ ” Cunningham v. R.R. Ret. Bd., 392 F.3d 567, 576 (3d Cir.2004) (quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). The Supreme Court has “emphasized time and again that ‘the touchstone of due process is protection of the individual against arbitrary action of government.’ ” County of Sacramento v. Lewis, 523 U.S. 833, 845, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (quoting Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)). Supreme Court “cases dealing with abusive executive action have repeatedly emphasized that only the most egregious official conduct can be said to be ‘arbitrary in the constitutional sense,’ ” and thus, “the Due Process Clause was intended to prevent government officials ‘from abusing [their] power, or employing it as an instrument of oppression.’ ” Id. at 846 (quoting Collins v. City of Harker Heights, 503 U.S. 115, 126, 129, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992)). In light of this case law, the Supreme Court has “spoken of the cognizable level of executive abuse of power as that which shocks the conscience.” Id.
According to Raab’s testimony, two expert witnesses whose names he had listed on his witness list called and advised him that they would be unable to testify. They advised him that the FAA had called Cessna a few days earlier and that Cess*310na’s attorneys had decided they should not be permitted to testify.
The only evidence other than this hearsay testimony of Raab indicated that Raab had failed to produce cimicula vitae for the witnesses in a timely fashion and that someone at the FAA called Cessna to ascertain their qualifications to testify as expert witnesses. There is no evidence, aside from Raab’s conclusory assertion, that the FAA’s call was intimidating in any way or was intended to intimidate. In short, the record does not establish conduct on the part of the FAA that “shocks the conscience.”
Moreover, Raab has failed to show that he was prejudiced in any way by the FAA’s call. He has made no proffer of the expert testimony that either of the listed witnesses would have been prepared to give, and he acknowledges that neither has first-hand knowledge of his inspection of the Aircraft.
Our decision in Lambert v. Blackwell, 387 F.3d 210 (3d Cir.2004), does not help Raab’s cause. While we did hold in that case that “[ijntimidation or threats from the government that dissuade a potential witness from testifying may infringe a defendant’s” due process rights, we noted also that “[i]n order to violate the Constitution, the government’s conduct must have ‘substantially interfered’ with a witness’s choice to testify.” Id. at 260. Indeed, we held that there was no due process violation where the prosecutor contacted the defendant’s expert witness a week before trial, even though the defendant’s attorney would not give his consent to such a contact. Id. at 261. In light of the fact that Raab presented no evidence that the FAA substantially interfered with his proposed witnesses’ choice to testify, other than the fact that the call was made to the witnesses’ employer, Raab’s reliance on Lambert is misplaced.
IV.
For the foregoing reasons, the petition for review will be DENIED.
. "Airworthy” means that "the aircraft conforms to its type design and is in a condition for safe operation.” 14 C.F.R. § 3.5(a). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478604/ | OPINION
PER CURIAM.
Elliot Simon, proceeding pro se, appeals from the District Court’s order denying his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c). For the reasons that follow, we will affirm the District Court’s order.
I.
In February 2000, Elliot Simon pleaded guilty under a written plea agreement to conspiracy to distribute, and possession with intent to distribute, more than fifty grams of crack cocaine in violation of 18 U.S.C. § 846, contrary to 18 U.S.C. § 841(a)(1). At Simon’s sentencing hearing, the District Court adopted the factual findings and United States Sentencing Guideline (“U.S.S.G.”) applications contained in the Pre-Sentence Report (“PSR”). The PSR stated that the base offense level for Simon’s crime was 32 under U.S.S.G. § 2D1.1. The statutory mandatory minimum of incarceration was 240 months. However, as a career offender, Simon’s sentencing range was determined based on the table in U.S.S.G. § 4Bl.l(b), which provided that his base offense level was 37. Factoring in a three-level downward adjustment for acceptance of responsibility, Simon’s total offense level was 34. With a mandatory Criminal History category of VI, see U.S.S.G. § 4Bl.l(b), the Sentencing Guideline range for imprisonment was 262 to 327 months. After accepting the government’s motion for a downward departure below the mandatory minimum due to Simon’s substantial assistance, see 18 U.S.C. § 3553(e); U.S.S.G. § 5K1.1, the District Court ultimately sentenced Simon to 168 months’ imprisonment.
In 2008, Simon filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c) based on Amendment 706 to the Sentencing Guidelines, which reduced by two levels the base offense level for most crack cocaine offenses. On November 5, 2008, the District Court entered an order denying Simon’s motion. This appeal followed.
II.
We have jurisdiction over this appeal under 28 U.S.C. § 1291. We review the question of whether a reduction of sentence is warranted for abuse of discretion. United States v. Styer, 573 F.3d 151, 153 (3d Cir.2009).
In November 2007, the Sentencing Commission issued Amendment 706, which lowered “the base offense level for crack cocaine offenses under U.S.S.G. § 2D1.1(c) by two levels.” United States v. Mateo, 560 F.3d 152, 154 (3d Cir.2009). The Com*312mission later declared that the Amendment applied retroactively. Id. The vehicle for already-sentenced defendants who seek a shorter sentence based on Amendment 706 is a motion under 18 U.S.C. § 3582(c)(2). Section 3582(c)(2) authorizes a district court to reduce the sentence of a defendant “who has been sentenced to a term of imprisonment based on a sentencing range that has been subsequently lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). A sentence may be reduced under this authority only when “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” Id.
“The applicable policy statement instructs that any reduction in sentence is not authorized by 18 U.S.C. § 3582(c)(2) if an amendment ‘does not have the effect of lowering the defendant’s applicable guideline range.’ ” Mateo, 560 F.3d at 154 (quoting U.S.S.G. § 1B1.10(a)(2)(B)). The Sentencing Guidelines also provide that if “the offense level for a career offender ... is greater than the offense level otherwise applicable, the [career offender] offense level ... shall apply.” U.S.S.G. § 4Bl.l(b). “That usually will be the case, since the career offender guideline sets forth a tabulation of offense levels that are determined by reference to the statutory maximum sentences authorized for various offenses of conviction.” United States v. Caraballo, 552 F.3d 6, 10 (1st Cir.2008) (internal quotation and citation omitted).
Simon’s base offense level as a career offender under § 4Bl.l(b) was higher than the base offense level calculated under § 2Dl.l(c). The District Court therefore utilized the career offender guidelines to determine that Simon’s offense level was 34, which in turn mandated his Guideline sentence range. Accordingly, Amendment 706 affords Simon no relief because lowering the base offense level under § 2Dl.l(c) would have no effect on the sentencing range applicable to him. See Mateo, 560 F.3d at 154-55.
Simon argues that because he received a downward departure that brought his sentence below the mandatory minimum for career offenders, he was not actually sentenced under § 4B1.1. Although Simon received a non-Guideline sentence, this had no effect on the sentencing range applicable to his case, as the variance was granted “after the court ... established an appropriately calculated Guideline sentencing range.” Caraballo, 552 F.3d at 11. And because “[i]t is the sentencing range that must be lowered by an amendment in order to engage the gears of section 3582(c)(2),” Simon’s argument cannot succeed.1 Id.; United States v. Williams, 551 F.3d 182 (2d Cir.2009). Cf United States v. McGee 553 F.3d 225, 227 (2d Cir.2009) (holding that a career offender who was granted a downward departure below the career offender range qualified for a reduced sentence because “the district court explicitly stated that it was departing from the career offender sentencing range to the level that the defendant would have been in absent the career offender status calculation and consideration”).
The facts here demonstrate that the District Court did not abuse its discretion in denying Simon’s motion to reduce his sentence. Accordingly, we will affirm the District Court’s November 5, 2008 order.
. We also note that even if Simon had established his eligibility for a sentence reduction under § 3582(c)(2), the Sentencing Guidelines state that "a further reduction generally would not be appropriate” if the original sentence is a downwardly variant non-Guideline sentence. U.S.S.G. § IB 1.10(b)(2)(B). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478606/ | OPINION
MICHEL, Circuit Judge.
Luis Gallego1 pled guilty to violating the conditions of his supervised release by con*314spiring to import heroin into the United States. His supervised release was revoked, and on July 10, 2009 he was sentenced to 15 months’ imprisonment. Gal-lego now appeals that sentence. We will affirm.2
I.
In September 2002, Gallego, who was living at his parents’ home in Bergenfield, New Jersey, received a telephone call from someone in Colombia. The unidentified caller threatened to kill Gallego’s wife,3 who was living in Colombia, if Gallego did not comply with the caller’s demands. At the caller’s direction, Gallego met a person known as “El Gordo” at the Cositas Ricas Bakery and Restaurant in Queens, New York. El Gordo gave Gallego $10,000 in cash and instructed Gallego to transport the cash to Cali, Colombia.
Gallego traveled to Colombia, where he delivered the cash and was given 1,291 grams of heroin to smuggle into the United States. On October 19, 2002, Gallego boarded a flight from Cali to John F. Kennedy Airport in New York. He had been instructed to travel from the airport to his parents’ home and to await a telephone call from the person who would accept delivery of the heroin. Gallego never made it out of the airport. Instead, during a routine Customs inspection, the inspectors discovered the heroin Gallego was transporting, and he was placed under arrest.
On July 8, 2003, Gallego pled guilty to importation of heroin into the United States in violation of 21 U.S.C. § 952(a) and 21 U.S.C. § 960(b)(3). On September 16, 2003, he received a sentence of 63 months’ imprisonment, plus three years’ supervised release.
Shortly before being released from prison in November 2007 to begin serving his supervised release, Gallego contacted federal agents to discuss the possibility of providing third-party cooperation. In connection with these discussions, Gallego informed the authorities that a man named Michael Henao would be smuggling drugs into the United States from Colombia.
Gallego began serving his supervised release on November 26, 2007. Three days later, he tested positive for cocaine use in a random drug test, violating a condition of his supervised release. Because of this positive drug test, the federal agents negotiating Gallego’s cooperation informed Gal-lego that they could no longer cooperate with him, that he should not participate in any criminal activity, and that he would not be protected from prosecution if he did engage in criminal activity.
On February 9, 2008, Michael Henao traveled from Bogota, Colombia, to Newark Liberty Airport in New Jersey, where he was apprehended by law enforcement authorities who discovered that he was carrying 2.4 kilograms of heroin. The agents also observed Gallego waiting in the arrivals terminal of the airport. When questioned, Gallego admitted that he was waiting for Henao to arrive and that he was being paid $1,000 to help Henao smuggle heroin from Colombia into the United States.
On June 17, 2009, Gallego pled guilty to violating a condition of his supervised re*315lease. In particular, the terms of his release prohibited him from “commit[ting] any further Federal, state, or local crimes,” but Gallego admitted that he had “participate^] in a conspiracy to import heroin into the United States” in violation of federal law. Gallego separately pled guilty to the conspiracy charge itself; his sentence for that charge is not at issue in this appeal.
Following Gallego’s guilty plea, the district court sentenced Gallego for his violation of his supervised release. With a Grade A violation and a criminal history category of II, Gallego’s Guidelines range was 15 to 21 months’ imprisonment, with a statutory maximum term of imprisonment of 24 months. Following a hearing at which Gallego presented his arguments for leniency, the district court sentenced Gal-lego to 15 months’ imprisonment, plus 21 months’ supervised release. This represented a sentence at the bottom of the Guidelines range. Gallego timely appealed.
II.
“Our responsibility on appellate review of a criminal sentence is limited yet important: we are to ensure that a substantively reasonable sentence has been imposed in a procedurally fair way.” United States v. Levinson, 543 F.3d 190, 195 (3d Cir.2008). Our review proceeds in two stages. 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, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Second, we consider the totality of the circumstances to determine whether the sentence is substantively reasonable. Tomko, 562 F.3d at 567. “[I]f the district court’s sentence is procedurally sound, we will affirm it unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” Id. at 568.
We do not presume that a sentence is reasonable or that the district court properly applied all factors simply because the sentence falls with the Guidelines range. United States v. Cooper, 437 F.3d 324, 329 (3d Cir.2006). Nevertheless, a sentence within the Guidelines range is less likely than an out-of-Guidelines sentence to be unreasonable. Id. at 331.
III.
Gallego first argues that his sentence for violating his supervised release was procedurally unreasonable. Although he concedes that the district court properly calculated the Guidelines range and that he did not move for any departure from the Guidelines range, Gallego argues that the district court failed to meaningfully consider his argument for a modified sentence under the relevant § 3553(a) factors. In addition, Gallego argues that the district court’s failure to apply the § 3553(a) factors resulted in a sentence that was substantively unreasonable, because the sentence was overly punitive. We address each of these arguments in turn.
Gallego’s argument for procedural unreasonableness turns on his theory that the district court failed to give meaningful consideration to his explanation for why he participated in the February 2008 conspiracy to import heroin. At the sentencing hearing, Gallego offered two reasons why he went to the Newark airport to pick up Henao. First, Gallego’s attorney stated that Gallego believed Henao would never *316make it through the Customs inspection, so Gallego would not actually be required to transport Henao from the airport to the place where he was to deliver the heroin. Second, Gallego’s attorney argued that Gallego believed that his efforts at cooperation with federal agents before his positive drug test had gotten him too far into the scheme to back out without alerting the other members of the conspiracy to his cooperation with the authorities. Gallego himself also testified at this hearing and stated that he had provided information to the authorities that allowed them to apprehend Henao, and Gallego believed that he should be sentenced leniently because of this.
On appeal, Gallego argues that, because these arguments were presented below, and because the district court had discretion to sentence Gallego to less prison time than called for under the Guidelines, the district court’s within-Guidelines sentence demonstrates that the court failed to meaningfully consider Gallego’s mitigation argument. We disagree. Gallego is of course correct that, a district court may “vary downward from the advisory guideline range.” Spears v. United States, — U.S.—, 129 S.Ct. 840, 842, 172 L.Ed.2d 596 (2009). But Spears was limited to cases in which the district court disagreed with the advisory Guidelines range. Id. In the absence of any disagreement with the Guidelines range, and in the absence of any mitigating circumstances found sufficient by the district court, a within-Guidelines sentence is likely to be reasonable. Cooper, 487 F.3d at 329.
Here, the district court did not disagree with the Guidelines range; instead, it imposed a within-Guidelines sentence. Under Spears, then, the district court was not compelled to depart from the Guidelines range unless it found that Gallego’s story both was believable and warranted a downward departure. The district court’s failure to grant the downward departure is of course consistent with Gallego’s theory that the district court did not even give Gallego’s story meaningful consideration. But it is equally consistent with the theory that the district court considered the story and found it either not believable or not worthy of a downward departure from the bottom of the Guidelines range. Additional evidence supports this latter theory. During its questioning of Gallego, the district court stated “I’m not buying this story too much” and “You seem to be making up excuses .ex post facto.” These statements are much more consistent with the idea that the district court found Gallego’s story not to be believable than with the theory that the district court failed even to consider Gallego’s story.
Essentially, Gallego’s argument is as follows: given that Gallego presented a story that, if believed, might have resulted in a finding of mitigating circumstances warranting a downward departure from the Guidelines range, and given that the sentencing court failed to grant such a downward departure, the sentencing court must not have even considered Gallego’s story. This conclusion is not logically compelled by the givén premises. Gallego simply ignores the possibility that his story might have been considered but not believed, and the district court’s statements during the sentencing hearing demonstrate that this was in fact the case.
Related closely to Gallego’s argument that the district court failed to consider his proffered mitigation argument is Gallego’s assertion that the district court failed to apply the relevant § 3553(a) factors before deciding whether to depart from the Guidelines range. Under 18 U.S.C. § 3583(e), a court is justified in revoking supervised release only “after considering the factors set forth in section *3173553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).” The failure to consider relevant factors from this list before revoking supervised release would render procedurally unreasonable the sentence imposed. But the district court is not required to “‘discuss and make findings as to each of the § 3553(a) factors if the record makes clear the court took the factors into account.’ ” United States v. Bungar, 478 F.3d 540, 543 (3d Cir.2007) (quoting Cooper, 437 F.3d at 329). Gallego insists that the district court failed to consider any of the § 3553(a) factors, but we disagree. The record makes clear that the district court, while not making express findings as to each factor, did consider each of them.
Section 3553(a)(1) requires the sentencing court to consider “the nature and circumstances of the offense and the history and characteristics of the defendant.” Here, the district court described the offense: “[Gallego] violated his term of su-' pervised release .... a new arrest involved meeting a courier who had just imported heroin.” The court also described the history and characteristics of the defendant: “Mr. Gallego is a 24-year old male who ... tested positive for cocaine just three days after being released from custody.... His original offense involved the offense of importing heroin.” The district court thus clearly considered the § 3553(a)(1) factor.
Under section 3553(a)(2)(B), the sentencing court must consider “the need for the sentence imposed ... to afford adequate deterrence to criminal conduct.” The district court considered this factor when it stated that “[Gallego’s] actions seem to show that he was not altering his criminal activity.” Obviously, a defendant who has committed crimes in the past and continues to commit similar crimes must be sentenced more harshly than a first offender or someone who has largely reformed. The district court’s statement was also reasonable, given that both Galle-go’s earlier crime and the crime for which Gallego was being sentenced involved the importation of heroin from Colombia.
Section 3553(a)(2)(C) requires the sentencing court to consider “the need for the sentence imposed ... to protect the public from further crimes of the defendant.” As with § 3553(a)(2)(B), the district court’s statement that “[Gallego’s] actions seem to show that he was not altering his criminal activity” demonstrates consideration of this factor. Someone who continues his criminal past by committing similar crimes is clearly a greater danger to the public than someone who only briefly stepped off the path of lawfulness. This factor requires the sentencing court to take into account the danger to the public, and it appears from the district court’s statements that it did so.
Under section 3553(a)(2)(D), the sentencing court must consider “the need for the sentence imposed ... to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.” The district court did not find any special need for education, vocational training, or medical care. But the court did find a need for ongoing drug testing and addiction treatment, and submission to testing and treatment was made a special condition of Gallego’s sentence.
Section 3553(a)(4) requires the sentencing court to consider the relevant range of sentences proposed in the Guidelines. As discussed above, Gallego admits that the district court properly calculated the Guidelines range and considered it in imposing sentence.
Under section 3553(a)(5), the sentencing court must consider “any pertinent policy *318statement ... issued by the Sentencing Commission.” Gallego has not pointed us to any policy statements issued by the Sentencing Commission that are relevant to this case but that were not considered by the district court, and we can find none.
Section 3553(a)(6) requires the sentencing court to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” Gallego has failed to explain how his sentence at the bottom of the Guidelines range risks a violation of this factor by creating sentencing disparities.
Under section 3553(a)(7), the sentencing court must consider “the need to provide restitution to any victims of the offense.” The district court did not order restitution, but it is not clear to us that there were any victims of Gallego’s crime to whom restitution could be made, nor has Gallego identified any. Thus, Gallego has not presented any cogent argument for how this factor should have been taken into account by the district court.
Thus, we disagree that the district court failed to apply the § 3553(a) factors. Our review of the record confirms that the District Court gave “rational and meaningful” consideration to the relevant § 3553(a) factors in imposing its sentence. United States v. Grier, 475 F.3d 556, 571 (3d Cir.2007) (en banc).
To the extent Garcia challenges the substantive reasonableness of his sentence, we reject that challenge, as we cannot say that “no reasonable sentencing court would have imposed the same sentence on th[is] particular defendant for the reasons the district court provided.” United States v. Tomko, 562 F.3d 558, 568 (3d Cir.2009) (en banc). Under the circumstances, we conclude the sentence was entirely reasonable. Accordingly, we will affirm that sentence.
. Although the caption in this appeal refers to the Defendant as “Luis Felipe Callego,” all other documents in this matter refer to him as "Luis Felipe Gallego.” Accordingly, other than in the caption, this opinion uses the surname "Gallego” to refer to the Defendant.
. The District Court had jurisdiction under 18 U.S.C. § 3231 and 18 U.S.C. § 3583(e). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). "The abuse-o 1-discre-tion standard applies to both our procedural and substantive reasonableness inquiries", discussed below. United. Stales v. Tomko, 562 F.3d 558, 567 (3d Cir.2009) (era banc).
. Gallego was nol legally married to the woman in question, but he has referred to her as his wife. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478610/ | OPINION
PER CURIAM.
Fatmir Kucana petitions for review of the Board of Immigration Appeals’ (“BIA”) final order affirming the Immigration Judge’s (“IJ”) denial of Kucana’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). For the reasons that follow, we will deny the petition.
I.
Kucana, a 28-year-old native and citizen of Albania, entered the United States in October 2006. Although he attempted to enter pursuant to the Visa Waiver Program,1 he violated that program by using a fraudulent Italian passport. Shortly after his arrival, he applied for asylum; withholding of removal, and relief under the CAT. As a result, he was placed in “asylum-only” proceedings and referred to an IJ.
In a January 2008 hearing before the IJ, Kucana testified that two unidentified men killed his father in Albania in June 1997. Kucana believed that these men committed the killing because of his father’s support for Albania’s Democratic Party, and Kuca-na’s great uncle testified that the men were members of Albania’s Socialist Party. After his father’s passing, Kucana and his . family moved to another part of Albania. In September 2006, Kucana returned to his former hometown to visit his father’s grave. On his way to the cemetery, the district chairman of Albania’s Democratic Party approached Kucana. During their conversation, the chairman stated that he was a friend of Kucana’s father, and he requested that Kucana meet with him the next day. Kucana agreed to do so.
When Kucana arrived at the meeting place the following day, two other individuals were present on the chairman’s behalf. They told Kucana to avenge his father’s death by placing explosives at the home of the Socialist Party leader. They explained that someone would train him in explosives, and that he needed to carry out the *321act as soon as possible. At the end of the meeting, Kucana told them that he needed to visit his mother for a few days. They asked for his phone number, and told him that if anyone learned of their plans, “this will cause the heads, your head or someone’s life, but they meant [Kueana’s] life.” (Admin. Rec. at 91.) After the meeting, Kucana told his mother what had transpired. She feared that he might now suffer harm at the hands of the Socialist Party and the Democratic Party, so she advised him to leave the country. Kucana testified that, a few weeks before the immigration hearing, his mother called him from Albania, informing him that she had received threatening phone calls from people looking for him.
At the close of the hearing, the IJ denied Kucana’s application. With respect to Kucana’s fear of the Socialist Party, the IJ stated that it “does not see sufficient evidence in [the record] to establish that [Ku-cana’s] father was killed for political reasons or that any of those political reasons are being imputed to [Kucana].” (Decision of IJ at 14.) Moreover, the IJ concluded that Kucana had not suffered any harm on account of his father’s political opinion and that, because the Socialist Party was no longer in power, there was even less likelihood that he would suffer such harm in the future. As for Kucana’s fear of the Democratic Party, the IJ made an adverse credibility finding, concluding that Kucana’s story about the proposed bombing was “highly implausible.” (Id. at 9.)
On appeal, the BIA affirmed the IJ’s decision without an opinion. Kucana now petitions for review of the BIA’s decision.
II.
We have jurisdiction over this petition pursuant to 8 U.S.C. § 1252(a)(1). See Shehu, 482 F.3d at 656. Because the BIA affirmed the IJ’s decision without an opinion, we review the IJ’s decision. See Pierre v. Att’y Gen. of the U.S., 528 F.3d 180, 184 (3d Cir.2008) (en banc).
We, like the Government, have difficulty making sense of the argument Kucana presents in his brief. It appears that he is challenging only the IJ’s adverse credibility finding. We review that finding for substantial evidence. See Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir.2005). Under this deferential standard of review, we must uphold the IJ’s finding “unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001).
Kucana has not shown that the substantial evidence compels vacating the IJ’s adverse credibility determination. “[A]n adverse credibility determination may properly be based on implausibility or inherent improbability,” provided that the record supports, and there are “specific, cogent reasons” for, that determination. Berishaj v. Ashcroft, 378 F.3d 314, 324 (3d Cir.2004). In this case, the IJ cogently explained the reasons for his skepticism of Kueana’s story:
[W]e have a rather strange situation, where [Kucana] is approached by people, nine or ten years after the fact, and then asked to perform a terrorist act that he apparently did not have any training for and was not, as was pointed out on cross-examination, was not within the inner circle, by any means, of the Democratic Party, and therefore, was not necessarily someone who could be seen logically as someone who would be trusted with such an extreme exercise, namely bombing someone he did not know and whom he had no personal vendetta against.
(Decision of IJ at 10.)
Additionally, the IJ highlighted that the background materials on Albania further *322undermine the plausibility of Kucana’s story. For example, the U.S. State Department’s 2007 Country Report on Human Rights Practices for Albania states that “[t]here were no reports that the government or its agents committed arbitrary or unlawful killings,” and that “[t]here were no reports of politically motivated disappearances.” (Admin. Rec. at 119-20.) Moreover, the State Department’s March 2006 Profile of Asylum Claims and Country Conditions for Albania states that “there have been no outbreaks of political violence since 1998, and the available evidence suggests that neither the Government nor the major political parties engage in policies of abuse or coercion against their political opponents.” (Id. at 139.) Kueana has not identified any record evidence to the contrary.
In light of the above, we will deny Kuca-na’s petition for review.
. Under the Visa Waiver Program ("VWP”), aliens from certain countries are permitted to visit the United States for ninety days or less without a visa. See 8 U.S.C. § 1187(a); 8 C.F.R. § 217.2. An alien who applies for admission under the VWP agrees to waive any challenge to his removal, except on the basis of an application for asylum, withholding of removal, and/or relief under the CAT. See 8 U.S.C. § 1187(b); Shehu v. Att’y Gen. of the U.S., 482 F.3d 652, 655 (3d Cir.2007). VWP applicants who apply for such relief are placed in "asylum-only" proceedings. Shehu, 482 F.3d at 655. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478613/ | *323OPINION
SLOVITER, Circuit Judge.
I.
Appellant David Harford, who pled guilty, appeals his sentence on one count of conspiracy to manufacture, distribute, and possess with intent to distribute methamphetamine in violation of 21 U.S.C. § 846. The District Court sentenced Harford to seventy-five months of imprisonment, a three-year term of supervised release, restitution of $6952.75, and a special assessment of $100.
At sentencing, the District Court adopted the Presentence Report (“PSR”). According to the PSR, Harford had a total offense level of 29 and a criminal history category of VI. Plarford’s criminal history category was based on the District Court’s determination that he was a career offender under U.S.S.G. § 4B1.1 due to prior convictions for attempted burglary, simple assault, and resisting arrest. Under the applicable Sentencing Guideline, the imprisonment range was 151-188 months, but the District Court granted the Government’s motion under U.S.S.G. § 5K1.1 for a downward departure of three levels in recognition of Harford’s substantial cooperation with investigators. The District Court also departed downward one criminal history category based on Harford’s unopposed motion for such a departure. After the grant of these motions, Harford had a criminal history category of V and an imprisonment range of 84-105 months. The District Court imposed a non-guideline sentence of seventy-five months under 18 U.S.C. § 3553 based on Harford’s post-offense rehabilitation, strong family support, and to avoid sentencing disparity among similar co-defendants.
Harford’s appeal raises one issue: whether the District Court correctly determined that he is a career offender. Har-ford challenges the Court’s denomination of the crimes of simple assault and resisting arrest under Pennsylvania law as crimes of violence for purposes of career offender determinations.1
II.
Under U.S.S.G. § 4Bl.l(a), Harford is a career offender if he (1) was at least eighteen years old when the instant offense occurred; (2) the instant conviction is a crime of violence or involves a controlled substance; and (3) he has at least two prior convictions for felonies involving a crime of violence or a controlled substance. A crime of violence means any offense punishable by imprisonment for a term exceeding one year under federal or state law that (1) has as an element the use, attempted use, or threatened use of physical force against another, or (2) is burglary of a dwelling, arson, extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. U.S.S.G. § 4B1.2(a)(l)-(2).
The Supreme Court has held that under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(i)(B), courts must interpret the term “violent felony” by considering not only whether the crime involves a serious potential risk of injury, but also whether the crime is sufficiently similar to the enumerated crimes of burglary, arson, extortion, or the use of explosives. Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 1585, 170 L.Ed.2d 490 (2008). Although this case involves the Sentencing Guidelines, authority interpreting the defi*324nition of violent felony under the ACCA is generally applicable to cases arising under the Guidelines. United States v. Stinson, 592 F.3d 460, 464 (3d Cir.2010). Generally, courts focus on the statutory language when considering whether a specified offense qualifies as a crime of violence and not the underlying facts of the case. Begay, 128 S.Ct. at 1584.
Since Harford’s appeal, this court has held that resisting arrest is a crime of violence under Pennsylvania law. Stinson, 592 F.3d at 466-67. If attempted burglary is also a crime of violence under the Guidelines, we may affirm without reaching the issue of Harford’s prior conviction for simple assault.
In the District Court, Harford did not challenge the classification of his attempted burglary conviction as a crime of violence. On appeal, Harford did not address the crime in his brief and at oral argument Harford did not challenge the Government’s position that attempted burglary is a crime of violence. Generally, failure to argue an issue on appeal results in waiver. United States v. Pelullo, 399 F.3d 197, 222 (3d Cir.2005). Thus, any argument that attempted burglary is not a crime of violence is waived.
Even assuming waiver does not apply, this argument would fail. In James v. United States, the Supreme Court held that attempted burglary under Florida law qualifies as a crime of violence under the ACCA. 550 U.S. 192, 209, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). The applicable Florida statute defined burglary as “entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein....” Fla. Stat. Ann. § 810.02(l)(a). Attempt was defined as “any act toward the commission” of an offense. Id. at § 777.04(1). The Court reasoned that because Florida law required an “overt act directed toward entry of a structure,” the crime presented a serious risk of physical injury and therefore qualified as a crime of violence. James, 550 U.S. at 208-09, 127 S.Ct. 1586. Thus, Harford is a career offender if the applicable state statute under which he was convicted for attempted burglary is similar to the Florida law considered in James. Neither party discusses the applicable state law for Harford’s attempted burglary conviction but according to the PSR, Harford was convicted for attempted burglary in New York. We therefore turn to New York law.
III.
Under New York law, “[a] person is guilty of burglary ... when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein.” N.Y. Penal Law § 140.20. A person is guilty of attempt when “he engages in conduct which tends to effect the commission of such crime.” Id. at § 110.00. In United States v. Andrello, the Second Circuit held that third-degree attempted burglary was a crime of violence under New York law because it required the defendant to come “within dangerous proximity to the criminal end to be attained” and made “mere preparation” insufficient. 9 F.3d 247, 249 '(2d Cir.1993) (per curiam) (quoting People v. Bracey, 41 N.Y.2d 296, 392 N.Y.S.2d 412, 360 N.E.2d 1094, 1097 (1977)). Following the Supreme Court’s decision in James, the Second Circuit has reaffirmed its holding that attempted third-degree burglary under New York law is a crime of violence. United States v. Lynch, 518 F.3d 164, 170 (2d Cir.2008).
Although the PSR does not state what degree of attempted burglary Harford committed, third-degree is the lowest class of burglary under New York law. It is therefore irrelevant for which degree Har-*325ford was convicted. Because Harford’s convictions for attempted burglary and resisting arrest are crimes of violence based on applicable state law, the District Court did not err in finding that he is a career offender under U.S.S.G. § 4B1.1.
IY.
For the reasons set forth above, we will affirm the judgment of sentence.
. We have jurisdiction pursuant to 18 U.S.C. § 3742. The standard of review for questions of law, such as whether a conviction qualifies as a crime of violence, is plenary. United. States v. Hull, 456 F.3d 133, 137 (3d Cir. 2006). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478614/ | OPINION OF THE COURT
RENDELL, Circuit Judge.
Russell D. Berscht was convicted by a jury of (1) conspiracy, in violation of 18 U.S.C. § 371, (2) bank fraud, in violation of 18 U.S.C. §§ 1344 and 2, and (3), wire fraud, in violation of 18 U.S.C. §§ 1343 and 2. On appeal, Berscht argues that there was insufficient evidence to convict him of conspiracy and/or bank fraud, that the District Court erred in instructing the jury regarding aiding and abetting, and that the District Court erred in determining the amount of restitution.
Because we write only for the parties who are familiar with the factual context and procedural history of this case, we recite only the facts that are relevant to our analysis. Berscht and his co-conspirators participated in a scheme in which they stole large checks issued by United States corporations and altered those checks to make them payable to entities owned by Berscht or his co-conspirators. Berscht caused a stolen check for $350,116.24 that was drawn on Enron Corporation’s account to be sent to an accountant named Roger Hendrickson, the owner and operator of the Rurik Trust Company, which managed offshore companies in the Cayman Islands. Hendrickson deposited the check on behalf of “Mansell Investment Corporation,” a company incorporated in the Cayman Islands that was owned and controlled by Berscht. Berscht called Ru-rik Trust to confirm the receipt of the check and ask when the funds would clear. At Berscht’s direction, the stolen funds were distributed to himself, his girlfriend, his father, and others through bank accounts in the Cayman Islands, Canada, and China. Hendrickson repeatedly asked Berscht for required documentation regarding the check, but Berscht never produced this and eventually stopped returning Hendrickson’s calls. The Enron check was eventually returned by Citibank and Rurik Trust’s account was debited $350,116.24. The government also presented evidence at trial regarding Berscht’s involvement in an attempt to deposit a check stolen from the Compaq Corporation.
I. Sufficiency of the Evidence: Conspiracy
Berscht claims that there was no evidence in the record to suggest that he was anything other than an unknowing participant in others’ crimes and that it is insufficient for a conspiracy conviction to merely show that he was present when *327crimes were committed or that an illegitimate check passed through his hands. Berscht contends that there was no proof that he knew that any of the checks were altered, and that the government failed to meet its burden of proving that Berscht was a willful participant in the scheme and had knowledge of its fraudulent purpose.
Our review of whether there was substantial evidence from which the jury could have found Berscht guilty of conspiracy is plenary, but highly deferential. United States v. Bornman, 559 F.3d 150, 152 (3d Cir.2009). Berscht has a very high burden to challenge the sufficiency of the evidence. United States v. Iglesias, 535 F.3d 150, 155 (3d Cir.2008) (quotation omitted). We must view the evidence in the light most favorable to the government and affirm if there is “substantial evidence from which any rational trier of fact could find guilt beyond a reasonable doubt.” Id. (quotation omitted). Furthermore, circumstantial evidence alone is enough to defeat a sufficiency of the evidence challenge. Id. at 156.
Count I charged Berscht with conspiracy to commit bank and wire fraud, in violation of 18 U.S.C. § 371. The elements of a fraud conspiracy under § 371 are “(1) an agreement between two or more persons to commit ... fraud; (2) the defendant knowingly joined the conspiracy; and (3) one of the conspirators committed an overt act in furtherance of the conspiracy.” United States v. Gebbie, 294 F.3d 540, 544 (3d Cir.2002).
As explained by the District Court, the government produced evidence at trial that Berscht wired instructions to Rurik Trust detailing where to distribute the stolen Enron funds. There was also evidence presented that Berscht relayed instructions from other coconspirators to Rurik Trust regarding the distribution of the funds. In addition, the government adduced evidence that Berscht called Rurik Trust to confirm the receipt of the check and knew the amount of the check and that it was being shipped via Federal Express. Hendrickson testified that Berscht repeatedly avoided answering Hendrick-son’s questions about the source of the funds. Viewing the facts described above in favor of the government, there was clearly enough evidence for a rational trier of fact to find beyond a reasonable doubt that Berscht willfully participated in the scheme to commit bank and wire fraud and had knowledge of its fraudulent purpose.
II. Sufficiency of the Evidence: Bank Fraud
Berscht claims that there “was no evidence of presentment for payment or negotiation of the vast bulk of claimed altered checks which would preclude a finding of bank fraud.” Appellant’s Br. 17. Berscht contends that only the Enron check was actually presented for payment and deposited, and that none of the other checks that were referred to during the trial and in the Presentence Report were presented or offered for deposit. Berscht states that “[ajbsent an actual loss by a bank, there simply is no completed bank fraud.” Appellant’s Br. 17 (citing United States v. Thomas, 315 F.3d 190, 200 (3d Cir.2002)). This is an incorrect statement of the law. In Thomas we stated that:
the relevant requirements under the bank fraud statute are: a defendant must execute, or attempt to execute, a scheme or artifice, intended to victimize a federal bank or federally insured bank by causing it an actual or potential loss of its own funds. Where the scheme involves the mere withdrawal of funds in the bank’s custody, the Government must show that the "withdrawal exposed *328the bank to some form of liability as a result of the fraud.
315 F.3d at 206 (emphasis added).
We clarified this holding by explaining that the specific intent requirement of § 1344 is satisfied if an individual “commits an act that could put the bank at risk of loss” regardless of whether the bank actually suffers a loss. United States v. Khorozian, 333 F.3d 498, 505 (3d Cir. 2003).
Khorozian clarified Thomas’s holding regarding the mens rea element of § 1344, making clear that intent to cause a loss or liability, or an intent to harm the bank, is not required. Rather, loss, or risk of loss, goes to the consequences of the fraudulent scheme, and it need not be intended to satisfy § 1344’s mens rea requirement of a specific intent to defraud a bank.
United States v. Leahy, 445 F.3d 634, 646 (3d Cir.2006).
Under Khorozian, Thomas’s requirement of an intent to cause loss to a bank is restricted to fact patterns in which the bank is an “unwitting instrumentality” of the fraud, such as where genuine checks by an authorized signatory are cashed and pocketed instead of being used as directed by the account holder. Id. However, where a bank is the “target of deception,” as it is when it potentially negotiates counterfeit checks, there is no requirement under the bank fraud statute that the defendant intended to harm the bank. Id. Furthermore, willful blindness as to a deposit of a counterfeit check is sufficient fraudulent intent under § 1344. Khorozian, 333 F.3d at 504.
Here, the altered Enron check targeted Citibank in that it clearly placed Citibank at a risk of loss. See Khorozian, 333 F.3d at 505, n. 5 (“ ‘The general rule is a bank that pays on a forged indorsement is liable to the drawer.’ ” (quoting Univ. Premium Acceptance Corp. v. York Bank & Trust Co., 69 F.3d 695, 701 (3d Cir.1995))). Viewing the evidence in the light most favorable to the government, there is a sufficient basis for a rational trier of fact to determine that Berscht committed bank fraud.1
III. Jury Instruction on Aiding and Abetting
Berscht claims that the District Court’s jury instruction on aiding and abetting was erroneous because it failed to explain that, as an accomplice, Berscht could only be liable if he knowingly, delib*329erately and intentionally participated in a criminal act. Berscht apparently concedes that he did not object to this instruction at trial when he states that “[tjhere is no specific notation on the record as to the objections to Instruction 26.” Appellant’s Br. 2. We will therefore review the District Court’s jury instruction on aiding and abetting for plain error.
“Generally, a party who does not clearly and specifically object to a charge he believes to be erroneous waives the issue on appeal.” Alexander v. Riga, 208 F.3d 419, 426 (3d Cir.2000); see also Fed.R.Civ.P. 51(d)(1). However, we “may consider a plain error in the instructions affecting substantial rights that has not been preserved as required by Rule 51(d)(1)(A) or (B).” Fed. R.Civ.P. 51(d)(2).
Bostic v. Smyrna Sch. Dist., 418 F.3d 355, 359 (3d Cir.2005).
The District Court instructed the jury that the government must prove that Berscht “knew that the offenses charged were going to be committed or were being committed,” that Berscht “did some act for the purpose of helping or encouraging Craig Hurst and others in committing the offenses and with the intent that Hurst commit the offenses,” and that Berscht’s “acts did in some way help or encourage Mr. Hurst to commit the offense.” SA. 549-552. Furthermore, the District Court explained that:
[ejvidence that Mr. Berscht was merely present during the commission of the offenses is not enough for you to find him guilty as an aider and abetter.... In addition, if the evidence shows that Mr Berscht knew that the offenses [were] being committed or [were] about to be committed, but does not also prove beyond a reasonable doubt that it was his intent and purpose to help or encourage or otherwise associate himself with the offense, you may not find Mr. Berscht guilty as an aider and abetter. The government must prove beyond a reasonable doubt that Mr. Berscht in some way participated in the offense committed by Mr. Hurst and others as something that he wished to bring about and to make succeed.
Id.
The District Court made it clear to the jury that in order to find Berscht guilty of aiding and abetting they would have to find that he knowingly, deliberately and intentionally participated in a criminal act. The District Court did not err, let alone plainly err, in instructing the jury regarding aiding and abetting.
IV. Restitution
Berscht claims that the District Court erred in ordering restitution for unproven amounts and failing to give credit for known offsets. We review the appropriateness of a restitution award for abuse of discretion. United States v. Fallon, 470 F.3d 542, 548 (3d Cir.2006). Berscht was ordered to pay a total of $214,900 in restitution ($184,000 to Roger Hendrickson and $30,900 to Octagon Capital). Berscht contends that there is nothing in the record to support these restitution orders. The government concedes that the case should be remanded to the District Court to redetermine the amount of loss to Octagon Capital. Appellee’s Br. 36-37. However, the government contends that the restitution ordered to be paid to Hendrickson is supported by the record. Hendrickson testified at trial as to his losses (SA 561, 588, 70-73) and provided an affidavit of loss in the amount of $184,000 to the probation office. PSR ¶ 34. Therefore, there is no indication that the District Court abused its discretion in ordering that Berscht pay $184,000 in restitution to Hendrickson.
*330For the reasons stated above, we will REMAND this case for a determination of the restitution amount owed to Octagon Capital and will AFFIRM on all other issues.
. In the same section of his brief, Berscht also claims that the references in the Presentence Report and the "record” to other checks, the "Texas checks,” are prejudicial because they are not relevant to a completed crime as they were never presented to a bank for deposit. Appellant's Br. 18-19. It is unclear whether Berscht is claiming that this evidence should not have been admitted at trial, in which case he does not indicate that he preserved this argument by objecting, or if he is claiming that the District Court erred in considering this evidence in deciding his sentence. Although Berscht claims that there "was nothing in the trial record regarding these checks” he also states that "[i]t is impossible at this point to separate out the effect that allusions and references to these matters dehors the record may have had on the jury in finding guilt or upon the Court in imposing sentence.” Appellant’s Br. 19-20. The government correctly points out that Berscht himself testified on direct examination as to receiving these checks. SA. 314-319. The government also claims that it was unaware of the checks until Berscht produced them during discovery, the checks were not referenced in the indictment, the police report contained no references to the checks, and the government never contended that they were part of the bank fraud offense. Appellee’s Br. 28. Berscht provides no evidence to suggest that evidence of the checks was improperly admitted or that the District Court improperly considered any factors in deciding Berscht's sentence. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478618/ | OPINION
PER CURIAM.
Fredy Horacio Posada-Martinez petitions for review of an order of the Board of Immigration Appeals (BIA). For the reasons below, we will grant the petition for *334review and remand the matter to the BIA to address Posada-Martinez’s motion to remand with respect to his claim under the Convention Against Torture (CAT).
Posada-Martinez, a native of Colombia, entered the United States in December 2005. He was charged as removable as an alien without valid entry documents. He conceded removability and applied for asylum, withholding, and CAT relief. He argued that he had been threatened in Colombia by the guerrillas of the Revolutionary Armed Forces of Colombia (FARC) on account of his political opinion and his membership in a particular social group. After a hearing, the IJ found Po-sada-Martinez credible but denied relief. Posada-Martinez appealed to the BIA and filed a motion to remand based on his brother’s murder in Colombia.
The BIA dismissed the appeal. It concluded that the threats and physical assault Posada-Martinez experienced in the past were not severe enough to constitute persecution. The BIA concluded that the IJ’s determination that the guerillas were only interested in Posada-Martinez’s money was not clearly erroneous. The BIA rejected Posada-Martinez’s argument that he was targeted by the guerrillas because he was a union leader or based on an actual or imputed political opinion. The BIA denied Posada-Martinez’s motion to remand based on his brother’s murder in Colombia. It determined that the murder did not constitute persecution and that Po-sada-Martinez was unable to show that one central reason for his brother’s death was on account of a protected ground. Posada-Martinez filed a timely petition for review.
We have jurisdiction pursuant to 8 U.S.C. § 1252. To establish eligibility for asylum, Posada-Martinez must demon-sti'ate either past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. See Vente v. Gonzales, 415 F.3d 296, 300 (3d Cir.2005). He needs to show that the protected ground was or will be at least one central reason for the persecution. 8 U.S.C. § 1158(b)(l)(B)(i). For withholding of removal, he must demonstrate that it was more likely than not that his life would be threatened in Colombia on account of one of these protected grounds. Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir.2003); 8 U.S.C. § 1231(b)(3)(A). To be eligible for withholding of removal under the Convention Against Torture, Posada-Martinez needs to show that it is more likely than not that he would be tortured if removed to Colombia. 8 C.F.R. § 208.16(c)(2).
We review the BIA’s factual determinations under the substantial evidence standard. Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.2003)(en banc). The BIA’s findings are considered conclusive unless “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We exercise de novo review over the BIA’s legal decisions. Toussaint v. Attorney General, 455 F.3d 409, 413 (3d Cir.2006).
At his hearing, Posada-Martinez testified that he had worked on his family’s farm and had been the president of a community group called the Union for Community Action (Union). A.R. at 129. He stated that his first direct encounter with the guerillas was in August 2004. The guerillas were friendly, asked him how things were on the farm and at the Union, and stated that they wanted an economic or financial collaboration. A.R. at 134. Posada-Martinez believed their request was extortion but did not take it seriously or pay them any money. He testified that during a subsequent encounter the guerillas told him if he did not pay, they would *335harm him and his family. The guerillas asked for approximately $50,000. A.R. at 135. Posada-Martinez believed that the guerillas thought he had access to money because the farm was going well and he had access to the Union’s money. He stated that during the most hostile encounter he was hit on the shoulders with the back of a gun. A.R. at 136. Posada-Martinez had no contact with the guerillas while the military was patrolling the area during May and June of 2005 but they returned once the military left. A.R. at 136-37.
Posada-Martinez submitted documents to support his claims. In a letter dated May 2005, the guerillas stated that they had heal'd that Posada-Martinez was influential in his job. They stated that he must pay one hundred million pesos within forty-five days. They indicated that they knew he had access to the budget of the Union. They warned him that if he went to the police, he and his family would pay the consequences. A.R. at 189. In July 2005, Posada-Martinez received another communication from the guerillas asking for money. In a letter dated August 28, 2005, the guerillas noted that he had not complied with their last request and that he should consider himself their “military objective” for not fulfilling his duty. A.R. at 192. In response, Posada-Martinez moved to another city. When his former employees told him that the guerillas were looking for him, he left and came to the United States.
Past Persecution
Posada-Martinez argues that he is entitled to asylum based on past persecution on account of his membership in a particular social group of landowning farmers and community leaders. We need not reach the question of whether the threats made against Posada-Martinez constituted past persecution or whether union leaders1 may be considered a particular social group. He is unable to show that the record compels a finding that his membership in a particular social group was a central reason for any past persecution. The BIA determined that the guerrillas’ inquiry into Posada-Martinez’s position in the Union did not show that his position was a central reason for their actions. The BIA upheld the IJ’s finding that the guerrillas were interested only in Posada-Martinez’s money. This finding is supported by the evidence described above.
Posada-Martinez argues that he testified that the guerrillas targeted him because he ran the farm and was president of the Union. He also points out that the guerrillas noted that he was influential in his job. However, this statement was followed by a demand for money and the guerrillas noting that they knew Posada-Martinez had access to the Union’s money. A.R. at 189. The guerrillas’ statement regarding Posada-Martinez’s influence at the Union does not compel a finding that his union leadership was a central reason for the guerrillas’ treatment of him.
Future persecution
Posada-Martinez contends that he has established a well-founded fear of future persecution on account of his membership in a particular social group of landowners and union leaders who have resisted FARC’s threats and fled. However, as noted earlier, Posada-Martinez argued before the BIA that the social group he belonged to was union leaders.2 *336As discussed above, the BIA determined that the guerrillas were interested only in Posada-Martinez’s money, and we conclude that the record does not compel a finding that he will be persecuted based on his status as a union leader.
Posada-Martinez also argues that he had a well-founded fear of persecution on account of an imputed political opinion. He contends that it is self-evident that the guerrillas will attribute an anti-FARC political opinion to him because he did not comply with their demands. However, the Supreme Court has rejected a similar argument — that a guerrilla organization’s attempt to conscript a person necessarily constituted persecution on account of political opinion. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 482, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).
Posada-Martinez quotes from our non-precedential opinion in Arias v. Gonzales, 143 Fed.Appx. 464 (3d Cir.2005) as support for his argument that his refusal to give money to the FARC guerrillas will cause them to impute an anti-FARC political opinion. “[T]he FARC is known to extort so-called ‘war taxes’ from civilians in order to finance its operations. Payment of war taxes is especially common in sections of Colombia controlled by the FARC. Refusal or inability to pay these war taxes is viewed as an act of political opposition and often results in reprisal.” Id. at 465. We are not bound by dicta from opinions that are not precedential. 3rd Cir. I.O.P. 5.7; see also 8 U.S.C. § 1252(b)(4)(A) (“[T]he court of appeals shall decide the petition only on the administrative record on which the order of removal is based.”).
Posada-Martinez asserts that the fact that the guerrillas labeled him a “military objective” demonstrates that the guerrillas imputed an anti-FARC political opinion to him. However, this is not sufficient to demonstrate that a reasonable fact-finder would be compelled to find that the guerrillas targeted him based on his political opinions.
Relief under the Convention Against Torture
3
The BIA concluded that PosadaMartinez had waived his claim to CAT relief because he failed to raise it on appeal. The only mention of CAT relief in his brief before the BIA was in the penultimate sentence. “Based on the arguments detailed above, Respondent [ ] requests that he be granted asylum, withholding of removal and/or protection under the Convention Against Torture.” A.R. at 45. Citing Hoxha v. Holder, 559 F.3d 157, 163 (3d Cir.2009), Posada-Martinez contends that his reference to CAT relief was sufficient to exhaust the issue. In Hoxha, the petitioner explicitly challenged the IJ’s denial of his motion for a continuance in his notice of appeal: “The Immigration Judge erred in denying [the] request for a continuance as his previous attorney withdrew just prior to his individual hearing. For this reason, [Hoxha’s] counsel was not able to assist him in preparing his claim.” Id. at 158. However, the petitioner failed to raise the issue in his brief before the BIA. We held that he had sufficiently exhausted the issue. “[T]he identification of an issue in a party’s notice of appeal satisfies the statutory requirement of exhaustion provided that the description of that issue in the notice sufficiently apprises the BIA of the basis for the appeal.” Id. at 159.
Here, Posada-Martinez merely requested relief under the CAT. He made no argument as to why he was entitled to *337relief, nor did he challenge the IJ’s denial of CAT relief in any way.4 His passing reference to CAT relief did not give the BIA sufficient notice of the basis for his appeal of the denial of CAT relief. Thus, he failed to exhaust this issue, and we lack jurisdiction to review it. 8 U.S.C. § 1252(d)(1).
Motion to remand
Posada-Martinez challenges the BIA’s denial of his motion to remand. He submitted evidence that his brother had been murdered in the same area where he himself had been threatened by the guerrillas. The BIA noted that there was no indication as to why his brother was killed and that Posada-Martinez was unable to demonstrate that one central reason for his brother’s death was on account of a protected ground.
A motion to remand is the functional equivalent of a motion to reopen. Korytnyuk v. Ashcroft, 396 F.3d 272, 282 (3d Cir.2005). Under 8 C.F.R. § 1003.2(c), the BIA may not grant a motion to reopen unless the evidence offered is material and previously unavailable. While Posada-Martinez argues that the BIA wrongly decided that he had not conclusively established his eligibility for asylum, we believe that the BIA denied the motion to remand on the ground that the evidence offered was not material to the issue of whether any alleged persecution was or would be on account of a protected ground. We review the BIA’s denial of a motion to remand on that basis for an abuse of discretion. INS v. Abudu, 485 U.S. 94, 105, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). Under an abuse of discretion standard, we will 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 conclude that the BIA did not abuse its discretion in denying the motion to remand with respect to Posada-Martinez’s claims for asylum and withholding of removal. The new evidence does not support his claims that he was or will be persecuted on account of a protected ground.
However, the BIA did not address this new evidence with respect to the CAT claim. To receive relief under the CAT, Posada-Martinez need not show that any torture will be on account of a protected ground. Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 349 (3d Cir.2008). While Posada-Martinez waived any challenge to the IJ’s denial of CAT relief based on the record before the IJ, he did raise the issue of whether his new evidence was sufficient to support a remand to the IJ. Because the BIA failed to address whether the CAT claim should be remanded to the IJ in light of Posada-Martinez’s new evidence, we will grant the petition and remand the matter to the BIA to address this limited issue; In all other respects, we will affirm the BIA’s decision.
. We agree with the government that Posada-Martinez did not exhaust his argument that the guerrillas targeted him based on his status as a landowner.
. The IJ noted that Posada-Martinez had not identified any particular social group to which he belonged. A.R. at 70.
. Posada-Martinez also applied for withholding of removal. Because he has not met the standard for asylum, he cannot meet the higher standard for withholding of removal. Ghebrehiwot v. Att'y Gen., 467 F.3d 344, 351 (3d Cir.2006).
. The IJ noted in his opinion that Posada-Martinez had not specifically mentioned torture. A.R. at 68. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478621/ | OPINION
PER CURIAM.
Luis Alberto Pretelt, a citizen of Colombia, was admitted to the United States as lawful permanent resident on October 23, 1999. On August 9, 2005, he was convicted of arson in the third degree in New Jersey under N.J. Stat. Ann. §§ 2C:17-l(b)(l) and 2C:2-6.1 On January 16, 2008, the Government charged him as removable under 8 U.S.C. § 1227(a)(2)(A)® for having committed, within five years of becoming a lawful permanent resident, a crime of moral turpitude for which a sentence of one year or more may be imposed. Pretelt applied for cancellation of removal. The Immigration Judge (“IJ”) denied Pretelt’s application and determined that Pretelt was removable as charged. Pretelt appealed to the BIA, which affirmed the IJ’s decision and dismissed Pretelt’s appeal.
Pretelt presents a petition for review. The Government initially submitted a motion to dismiss Pretelt’s petition, arguing that the Court lacks jurisdiction because Pretelt was convicted of a crime involving moral turpitude and raises no legal or *339constitutional issues. However, in its brief, the Government does not pursue its jurisdictional argument, instead requesting that we deny the petition on the merits. As the Government realizes, we retain jurisdiction under 8 U.S.C. § 1252(a)(2)(D) over constitutional claims and questions of law raised in a petition for review. Accordingly, we deny the Government’s motion and review the issue that Pretelt raises, namely whether his crime was a crime of moral turpitude. Cf Garcia v. Attorney Gen. of the United States, 462 F.3d 287, 291 (3d Cir.2006).
The specific issue is whether the crime (arson in the third degree) for which Pre-telt was convicted is a crime of moral turpitude. (It is undisputed that Pretelt committed a crime (on May 11, 2004) within five years of becoming a lawful permanent resident (on October 23, 1999) for which he was subject to a term of imprisonment of one year or more, see N.J. Stat. Ann. § 2C:43-6(a)(3).) Upon review, we hold that the agency reasonably concluded that Pretelt committed a crime of moral turpitude.
In Partyka v. Attorney General of the United States, we summarized the inquiry into whether a crime involves moral turpitude:
Whether an alien’s crime involves moral turpitude is determined by the criminal statute and the record of conviction, not the alien’s conduct.... Under this categorical approach, we read the applicable statute to ascertain the least culpable conduct necessary to sustain a conviction under the statute.... As a general rule, a criminal statute defines a crime involving “moral turpitude only if all of the conduct it prohibits is tur-pituclinous.” ... Where a statute covers both turpitudinous and non-turpitu-dinous acts, however, it is “divisible,” and we then look to the record of conviction to determine whether the alien was convicted under that part of the statute defining a crime involving moral turpitude.
417 F.3d 408, 412 (3d Cir.2005) (citations omitted); see also Jean-Louis v. Attorney Gen. of the United States, 582 F.3d 462, 466 (3d Cir.2009) (describing our limited factual inquiry to determine the specific subpart under which a defendant was convicted in cases in which the statute of conviction is “divisible”).
The section of the statute under which Pretelt was convicted reads as follows:
b. Arson. A person is guilty of arson, a crime of the third degree, if he purposely starts a fire or causes an explosion, whether on his own property or another’s:
(1) Thereby recklessly placing another person in danger of death or bodily injury[-]
N.J. Stat. Ann. § 2C:17-l(b)(l). New Jersey defines the term “recklessly” as follows:
Recklessly. A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation. “Recklessness,” “with recklessness” or equivalent terms have the same meaning.
N.J. Stat. Ann. § 2C:2-2(b)(3).
The recklessness required for Pretelt’s conviction under New Jersey law is recklessness in regard to the life or bodily integrity of another. Accordingly, the BIA did not err in concluding the crime implicated “accepted rules of morality and the duties owed to society.” Knapik v. *340Ashcroft, 384 F.3d 84, 90 (3d Cir.2004). In Knapik, we held that the BIA did not act unreasonably in concluding that a first degree reckless endangerment statute, which contained aggravating factors requiring a defendant to create a “ ‘grave risk of death to another person’ ” “ ‘under circumstances evincing a depraved indifference to human life,”’ described a crime involving moral turpitude. Id. As we stated in Partyka (citing Knapik), we have expressed approval of the BIA’s decision to find “moral turpitude to inhere in serious crimes committed recklessly, i.e., with a conscious disregard of a substantial and unjustifiable risk that serious injury or death would follow.” 417 F.3d at 414. The arson crime at issue in this case, with requisite recklessness in relation to the risk of injury or death, is not sufficiently distinguishable from the crime in Knapik to justify a different result.
In short, for the reasons stated, we deny the Government’s motion to dismiss and we will deny the petition for review.
. Section 2C:2-6 is a general liability provision. Section 2C:17-1 describes arson and related offenses; although it has many sections, diere is no dispute that Pretelt's conviction was under subsection (b)(1). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478623/ | OPINION
PER CURIAM.
Jian Li Zheng has filed a petition for review of the final order by the Board of *341Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ” ’s) denial of Zheng’s requests for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). For the reasons that follow, we will deny the petition for review.
The parties are familiar with the background of this case, and so we provide only a summary of the proceedings. Zheng is a native and citizen of the People’s Republic of China who arrived in the United States in December 2005. She was placed in removal proceedings as an arriving alien without a valid entry document (8 U.S.C. § 1182(a)(7)(A)(i)(I)). She conceded re-movability and applied for asylum, withholding of removal, and CAT relief as a Falun Gong practitioner. The IJ held an evidentiary hearing on Zheng’s claims on December 21, 2006.
Zheng testified about her involvement with Falun Gong. Zheng stated that she often had been ill with throat infections and fever, and she had a growth or lump in her throat, as diagnosed by a doctor in China. She later described her condition as a “big membrane of cells” near her mouth. A friend with similar health afflictions introduced her to the practice of Falun Gong. Zheng began her practice in 2003, and her throat condition improved. Zheng stated that she used to practice Falun Gong every day, either at her home or at her friend’s house. While at her friend’s house in November 2004, her parents telephoned to tell her that the police had searched their home looking for her because of her Falun Gong activities. Zheng did not return home and instead went to live with her grandaunt, who lived about two hours away. She testified that in January 2005, the police came to her grandaunt’s home while Zheng was outside, gathering flowers on the mountain near her grandaunt’s home. She saw the police cars and remained out of view until they departed. Her grandaunt later told Zheng that the police had accused her of violating the law by practicing Falun Gong. Zheng then went to- stay at another friend’s house, and then she arranged to come to the United States. Zheng stated that the police continued to visit her home about once a week during this period and that her parents were threatened with arrest if she did not surrender. She fears returning to China because she would be arrested for her Falun Gong practice and for illegally fleeing the country. Zheng submitted supporting documentation, including identity documents and a letter from her father.
On cross-examination, Zheng stated that she was not certain about how often the police visited her parents’ home to look for her, but she affirmed that her parents have not been arrested despite that threatened outcome. When asked why she had testified that the police came to look for her at her grandaunt’s house in January 2005 when her written statement indicated that the event occurred in May 2005, Zheng changed her testimony, affirming that the date was May 2005. As further explanation, she stated that the interpreter was speaking too quickly. The IJ explored whether there possibly could have been a misunderstanding or interchangeability of the Chinese words for “January” and “May,” and whether the interpreter heard “May” but interpreted “January”; the IJ observed that the words in Chinese were completely different in sound. Ultimately, in attempting to clarify her testimony concerning the relevant date, Zheng explained that she had testified regarding her arrival at her grandaunt’s house in November 2004 and the events that followed, then stated, “I don’t know if I said November and January and got confused.” (A.R. 108.)
*342The IJ found that Zheng lacked credibility, denied all forms of relief, and ordered removal to China. On August 25, 2008, the BIA dismissed the appeal. The BIA found no clear error in the IJ’s adverse credibility determination, citing Zheng’s unpersuasive testimony regarding her medical condition, how authorities first discovered her activities, and dates when police searched for her. This petition for review followed.
We have jurisdiction to review the BIA’s final order of removal under 8 U.S.C. § 1252(a). To the extent that the BIA deferred to the IJ’s credibility findings, we will review the IJ’s decision as supplemented by the BIA. See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.2004). Credibility determinations are reviewed under the substantial evidence standard. See id. at 243. Adverse credibility determinations based on speculation or conjecture, rather than on record evidence, are reversible. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). Zheng’s asylum application was filed after May 11, 2005, and thus the provisions of the REAL ID Act apply. See Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir.2007). Under the REAL ID Act, an adverse credibility determination can be based on inconsistencies, inherent implausibilities, inaccuracies, and other factors, without regard to whether they go to the heart of an applicant’s claim. 8 U.S.C. § 1158(b)(l)(B)(iii). The Court must uphold the credibility determination of the BIA unless “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
Zheng tacitly challenges the applicability of the REAL ID Act provision regarding credibility determinations, contending that the agency’s adverse credibility determination rests upon minor and irrelevant discrepancies. We need not consider the effects of the new provisions, however, because we conclude that substantial evidence supports the adverse credibility determination on matters that concern the heart of Zheng’s claim. For example, the BIA noted Zheng’s unpersuasive testimony regarding the dates the police searched for her — an issue which Zheng concedes is a material issue to her asylum claim. See Petr’s Br. at 14. Her initial testimony indicating a January 2005 date was inconsistent with her changed testimony and her written statement indicating a May 2005 date. This date discrepancy concerns an event that was purportedly pivotal in Zheng’s decision to flee to the United States. We agree with the BIA’s conclusion that Zheng’s explanations at the hearing were inadequate to resolve the inconsistencies. We conclude that the record contains substantial evidence to support the adverse credibility finding and does not compel a contrary finding.1
We discern no reason to disturb the agency’s denial of asylum and withholding of removal. Zheng presents no argument regarding her claim for protection under the CAT. We deem any challenge to the denial of CAT relief to be waived and will not address it. See Lie v. Ashcroft, 396 F.3d 530, 532 n. 1 (3d Cir.2005).
We will deny the petition for review. The government’s motion to proceed on the administrative record is granted.
. Because substantial evidence supports the adverse credibility finding, we need not reach Zheng's arguments relating to her eligibility for asylum relief. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478625/ | OPINION
AMBRO, Circuit Judge.
Thomas Milton Street appeals his conviction for three counts of willfully failing to file federal income tax returns for tax *344years 2002 through 2004, in violation of 26 U.S.C. § 7203.1 For the following reasons, we affirm the District Court’s judgment.
I.
In November 2006, Street was indicted on various counts of mail fraud, wire fraud, honest services fraud, assisting in filing false tax returns, and failing to file federal income tax returns. In February 2008, after a two-week trial, a jury convicted Street only for failing to file tax returns. He filed a motion for a stay of sentence pending appeal and a motion for a new trial. The District Court denied the motions, and sentenced Street to 30 months’ imprisonment.
II.
Because Street is proceeding pro se, we construe his briefs liberally. He makes four arguments on appeal: (1) the evidence presented at trial was insufficient to establish he willfully failed to file tax returns; (2) the indictment was constructively amended at trial by the evidence, arguments, and jury instructions; (3) the District Court precluded him from presenting a meaningful defense; and (4) he received ineffective assistance of counsel.
A. Sufficiency of the Evidence
Street first challenges the sufficiency of the evidence to convict him for willful failure to file tax returns in 2002 through 2004. To sustain the conviction, the evidence must be sufficient to prove each of the following elements beyond a reasonable doubt: (1) he was required to file the tax returns; (2) he failed to file them; and (3) his failure was willful. United States v. McKee, 506 F.3d 225, 244 (3d Cir.2007). “Willfulness requires the voluntary, intentional violation of a known legal duty as a condition precedent to criminal liability.” Id. at 236 (citing Cheek v. United States, 498 U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991)).
“‘We apply a particularly deferential standard of review when deciding whether a jury verdict rests on legally sufficient evidence.’ ” United States v. Soto, 539 F.3d 191, 193-94 (3d Cir.2008) (quoting United States v. Dent, 149 F.3d 180, 187 (3d Cir.1998)). We will sustain the verdict if, viewing the evidence in the light most favorable to the Government, “ ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Id. at 194 (quoting Dent, 149 F.3d at 187).
At trial, an IRS analyst testified that Street filed federal income tax returns (Form 1040) for the years 1992-2001, but that the IRS did not receive any tax returns from Street for the years 2002-2004. An IRS revenue agent testified about the federal income tax return filing requirements, and the Government presented evidence that Street’s income exceeded the base amount triggering those requirements.
The Government also presented the testimony of Street’s former accountant, Fred Johnson. In the 1990s, Street enlisted Johnson’s firm to bring his taxes up to date. Johnson testified that he prepared Street’s tax returns, installment agreements, and extension requests, and that he spoke to Street about his obligation to file a tax return and to make payments under the installment agreement in place with the IRS. Johnson further testified that he did not prepare a tax return for Street in 2002-2004, although he attempted to gath*345er Street’s personal income and expense information for those years.
Street makes two arguments that this evidence was insufficient to establish his guilt. First, he argues that while there is no dispute he failed to file his tax returns in those years, there was no evidence he failed to “make” the returns. Presumably, Street’s theory is that he did not violate 26 U.S.C. § 7203 because his accountant “made” his returns (a strange argument given the accountant’s trial testimony that he did not in fact prepare the returns), even though Street admits he did not “file” them. This argument assumes that § 7203’s directive to “make” a tax return is different than a requirement to “file” that return.2 It is not. As the Court of. Appeals for the Seventh Circuit has explained, “[mjaking a tax return is a term of art for the combination of completing and filing; any accountant or lawyer would have told [the defendant] so, had he asked.” United States v. Dunkel, 900 F.2d 105, 108 (7th Cir.1990), vacated on other grounds, 498 U.S. 1043, 111 S.Ct. 747, 112 L.Ed.2d 768 (1991). Street’s creative reinterpretation of the statute’s use of “to make” as “to fill out” or “to complete” is without basis. (Nor, we note, was this theory presented to the jury.)
Second, Street argues that the Government failed to prove willfulness because he had a “good faith belief’ that he was not required to file tax returns. Specifically, Street testified he believed that he was not required to fill out IRS Form 1040A because the form did not satisfy the Paperwork Reduction Act (“PRA”). However, the jury heard evidence that Street had filed his federal income tax returns for years before stopping. His accountant informed Street of his duty to file tax returns, and Street in fact retained that accountant because he (Street) was behind on his tax returns and wanted to become current. The jury was free to reject Street’s testimony that he was acting with a good faith belief he was not required to file tax returns.
B. Constructive Amendment
Street alleges the indictment was constructively amended because, while it charged him with failing to “make” an income tax return, the Government’s theory of prosecution, reflected in the evidence presented at trial and the jury instructions, was that he failed to “file” a tax return for the relevant years.
“An indictment is constructively amended when evidence, arguments, or the district court’s jury instructions effectively ‘amend[s] the indictment by broadening the possible bases for conviction from that which appeared in [it].’ ” McKee, 506 F.3d at 229 (quoting United States v. Lee, 359 F.3d 194, 208 (3d Cir.2004)) (alteration in original).
However, as discussed above, there is no difference between “making” a tax return and “filing” a tax return. Failing to “file” a tax return is thus the same as — not broader than — failing to “make” a tax return. There was no error.
C. Constitutional Right to Present a Meaningful Defense
During trial, Street subpoenaed two high-level government officials to testi*346fy about whether IRA Form 1040 complied with the PRA. The District Court quashed the subpoenas, ruling that the proposed testimony had no relevance to the criminal charges. According to Street, this effectively deprived him of his constitutional right to present evidence in support of his defense theory, in violation of the Compulsory Process clause of the Sixth Amendment.3 Street argues that he had a right to present testimony of Office of Management and Budget (“OMB”) and IRS officials in support of his defense that he had a good faith belief he was not required to file tax returns based on the PRA.
This argument fails. Street must prove: “[fjirst, that he was deprived of the opportunity to present evidence in his favor; second, that the excluded testimony would have been material and favorable to his defense; and third, that the deprivation was arbitrary or disproportionate to any legitimate evidentiary or procedural purpose.” Mills, 956 F.2d at 446.
Street was allowed to present his PRA theory when he testified. There is no indication how the officials’ testimony would have been material to his defense. As the Government notes, “Street has never explained how the testimony of high-level government witnesses he never met would impact on his subjective belief’ that he need not file tax returns. Gov’t Br. 31-82.
Indeed, defense counsel did not argue to the District Court at trial that these witnesses would provide testimony relevant to Street’s subjective good faith belief. The defense argued instead that their testimony would be relevant because a failure to comply with the PRA is a defense to the failure to fill out tax forms. Gov’t Supp’l App. 1303-08. As the District Court recognized, courts have repeatedly rejected this frivolous defense. See, e.g., United States v. Patridge, 507 F.3d 1092, 1094-95 (7th Cir.2007); United States v. Neff, 954 F.2d 698, 700 (11th Cir.1992) (concluding that “the PRA provides [the defendant] no refuge from his statutorily-imposed duty to file income tax returns”); United States v. Flicks, 947 F.2d 1356, 1359-60 (9th Cir. 1991) (holding that the PRA “constitutes no defense to prosecution under 26 U.S.C. § 7203,” and noting that the “PRA was not meant to provide criminals with an all-purpose escape hatch”). Even if the PRA were violated (although we cannot fathom how, as Form 1040 in fact has a valid OMB control number), the obligation to file federal income tax returns stems from a federal statute, while the PRA applies to agency regulations, and thus the PRA has no effect on the IRS’s ability to enforce the statutory obligations requiring taxpayers to file federal income tax returns.
D. Ineffective Assistance of Counsel
Street’s final issue on appeal is an ineffective assistance of counsel claim, based primarily on the issues related to those we reject above and as well as the Speedy Trial Act. “This Court generally does not review Sixth Amendment ineffective assistance of counsel claims on direct appeal,” United States v. Olfano, 503 F.3d 240, 246 (3d Cir.2007), and we will not do so here.
For these reasons, we affirm Street’s conviction.
. The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291. Street did not appeal his sentence.
. 26 U.S.C. § 7203 provides, in relevant part, "Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof to make a return, keep any records, or supply any information, who willfully fails to pay such estimated tax or tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor. ..."
. To the extent Street's complaint is grounded in due process, we reach the same conclusion. See Gov’t of Virgin Islands v. Mills, 956 F.2d 443, 446 n. 4 (3d Cir.1992) (noting that there is "apparently little, if any" difference between the analysis under the Due Process clause and the Compulsory Process clause). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478627/ | OPINION
PER CURIAM.
Edward Donnelly, proceeding pro se, appeals from an order of the United States District Court for the Middle District of Pennsylvania dismissing his complaint alleging legal malpractice and other claims against his workers compensation attorneys. We will affirm.
Donnelly filed a complaint, which he amended, against the law firm of *348O’Malley & Langan, P.C., and its attorneys (collectively referred to as the “O’Malley defendants”), who represented him on a workers compensation claim that was settled on July 12, 2007. Donnelly alleged that the O’Malley defendants failed to investigate his workers compensation claim before negotiating a settlement. Against his express directive, counsel also disclosed his letter of resignation to the employer before settlement. He claimed that the O’Malley defendants improperly obtained and disclosed confidential information about him without his authorization. In August 2007, Donnelly terminated his contract for legal services with the O’Malley defendants, and filed a pro se penalty petition claiming that his employer failed to send him a settlement check in the specified time period. During the pen-dency of the penalty petition proceedings, the employer delivered the check to the O’Malley defendants, who allegedly opened it without Donnelly’s permission and threw away the envelope.1 Donnelly claimed that the O’Malley defendants deliberately interfered with the penalty proceedings by destroying the envelope, which, according to him, constituted material evidence in his case. He also alleged that when they no longer represented him, the O’Malley defendants obtained a copy of the settlement hearing transcript and improperly discussed his case ex parte with an employment attorney, a workers compensation judge, and the employer’s lawyer. He raised claims of invasion of privacy under state, law,2 breach of contract, legal malpractice, and violation of his state and federal constitutional rights.
The defendants filed a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, to which Donnelly responded. By order entered on October 2, 2009, the District Court granted the O’Malley defendants’ motion and dismissed the Amended Complaint. The District Court dismissed Donnelly’s breach of contract/legal malpractice claim, holding that he failed to submit a certificate of merit (“COM”), which is required under Rule 1042.3(a) of the Pennsylvania Rules of Civil Procedure absent a'reasonable explanation or legitimate excuse. See Womer v. Hilliker, 589 Pa. 256, 908 A.2d 269, 278-79 (2006). The court determined that Donnelly provided no reasonable explanation for failing to file a COM, and his promise to produce a legal expert in the future did not comply with the rule.
Next, the District Court held that Don-nelly failed to state an invasion of privacy claim under Pennsylvania law. See Vogel v. W.T. Grant Co., 458 Pa. 124, 827 A.2d 133, 135-36 (1974) (adopting Sections 652B through 652E of the Restatement (Second) of Torts). The District Court rejected as meritless Donnelly’s claim that the O’Malley defendants invaded his privacy by obtaining information about him from the Department of Labor & Industry, which was needed in order to repre*349sent him in workers compensation proceedings, and by procuring the transcript of the workers compensation hearing, a .matter of public record. As for his claim of ex parte communications between the O’Malley defendants (whose services had been terminated) and an employment attorney, a workers compensation judge, and the employer’s lawyer, the District Court held that Donnelly’s “naked assertions” were insufficient to show that any private facts had been disseminated to the public or that he was placed in a false light as a result of such communications.
Treating Donnelly’s federal constitutional claim as one brought pursuant to 42 U.S.C. § 1983, the District Court held that he failed to show that the O’Malley defendants, private attorneys practicing in a private law firm, acted “under color of state law.” See Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) (a private party is a “state actor” for § 1983 purposes only where “he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State”). The District Court likewise dismissed Donnelly’s state constitutional claim as a matter of law against the O’Malley defendants, noting that the provisions of Article 1, § 1 of the Pennsylvania Constitution “govern only the actions of the state government.” See Dillon v. Homeowner’s Select, 957 A.2d 772, 776 (Pa.Super.Ct.2008). Donnelly filed this timely appeal.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District Court’s dismissal for failure to state a claim upon which relief may be granted is plenary. Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir.1999). In order to survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” See Ashcroft v. Iqbal, — U.S.—,—, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Well-pleaded factual content is accepted as true for purposes of determining whether the complaint states a plausible claim for relief. Id. at 1950. The assumption of truth does not apply, however, to legal conclusions couched as factual allegations or to “[tjhreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. at 1949. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
We conclude that the District Court applied the appropriate standard for dismissal pursuant to Rule 12(b)(6) and properly dismissed Donnelly’s Amended Complaint for the reasons stated in its Opinion. Donnelly argues on appeal that no COM was required for his breach of contract and legal malpractice claims against the O’Malley defendants because these claims do not call for expert testimony to explain their lapses in judgment or failures in performance. He asserts that his allegations are easy for an ordinary person to understand. For instance, he asserts that the O’Malley defendants gave him employment advice, which is outside their realm of expertise. (Informal Br. at 5.) Regardless of how he chooses to characterize his claim, however, Donnelly’s allegations pertain to the quality of the O’Malley defendants’ professional representation of him, and thus a COM is required. See Gorski v. Smith, 812 A.2d 683, 694 (Pa.Super.Ct.2002) (stating that in *350cases where there is an attorney/client agreement for legal services, “there automatically arises a contractual duty on the part of the attorney to render those legal services in a manner that comports with the profession at large”); Pa. R. Civ. P. 1042.3 (a COM is required in “any action” against an attorney that calls into question whether counsel “deviated from an acceptable professional standard”). Involuntary dismissal under Rule 1042.3 is not a dismissal with prejudice, however. See Moore v. John A. Luchsinger, P.C., 862 A.2d 631, 634 n. 3 (Pa.Super.Ct.2004). Hence, we will affirm the District Court’s order dismissing this claim as modified to be a dismissal without prejudice.
We have thoroughly reviewed the remainder of Donnelly’s arguments on appeal and we conclude that they are merit-less.3
Accordingly, we will affirm the judgment of the District Court, modified as a dismissal without prejudice as to the legal malpractice claim. The appellees’ motion to dismiss/quash the appeal is denied.
. Apparently, Donnelly moved from the homeless shelter where he had been residing around the time his settlement check was due. Donnelly also complains that the O'Malley defendants sent, the check to him by certified mail instead of by regular first class mail.
. To the extent that Donnelly claimed that his privacy was invaded under the Freedom of Information Act (“FOIA"), 5 U.S.C. § 552, we agree with the District Court that the FOIA applies only to the release of government records by the federal government, and, thus, Donnelly’s claim fails as a matter of law. Donnelly also has no meritorious claim under the Privacy Act, 5 U.S.C. § 552a, which protects individuals from the misuse of identifying information contained in computer information systems that are maintained by federal agencies. See Thomas v. United States Dep’t of Energy, 719 F.2d 342, 345 (10th Cir.1983).
. We see no need to remand the matter for amendment of .the Complaint regarding Don-nelly's privacy and § 1983 claims because amendment would be futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Here, no additional allegations would cure the defects in the Complaint regarding the state action requirement under § 1983. Moreover, Donnelly relies on pure conjecture on appeal (see Informal Br. at 12 & 23-24), and there is nothing in this record indicating that he could have amended his Complaint to state a viable invasion of privacy claim. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478631/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Henry Earl Miller, a federal prisoner, appeals the district court’s order denying various motions that Miller filed following the denial of rehef on his 28 U.S.C. § 2241 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Miller v. United States, No. 6:09-ev-01150-HFF (D.S.C. filed Dec. 29, 2009; entered Dec. 30, 2009). We deny as unnecessary Miller’s motion for a certificate of appealability and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478597/ | FUENTES, Circuit Judge, concurring.
I agree with the majority opinion that the trial judge’s comments during Smith’s testimony were inappropriate. I write separately to emphasize an additional prejudicial comment by the trial judge that I believe affected the fairness of Williams’s trial. At trial, Makeda Petersen was called as a witness to testify by the Government, and she testified that Williams was not the shooter at the scene. The Government, dissatisfied with her testimony, moved to have Petersen declared a hostile witness under Federal Rule of Evidence 611(c). The court agreed with the Government, and then, in the presence of the jury, stated that it had declared Petersen to be a hostile witness. The trial judge went on to state that the court “deems her to be uncooperative and, evasive, and particularly twice she has rejected questions by the Government calling her.” (Supp App. 865-66 (emphasis added).) The prejudicial effect of remarks like this underscores why courts should not explain evidentiary rulings in the jury’s presence. The trial judge’s characterization of Petersen’s testimony as “uncooperative and evasive” could very well have influenced the jury’s assessment of whether or not to credit her testimony. See Quercia v. United States, 289 U.S. 466, 470, 53 S.Ct. 698, 77 L.Ed. 1321 (1933). In a case such as this, in which the jury heard contradictory accounts of the critical events and its ultimate decision depended upon whether it believed Petersen’s testimony, judicial statements bearing upon the credibility of a witness, such as the trial judge’s characterization of Petersen’s testimony here, could be highly influential. Cf United States v. Anton, 597 F.2d 371, 374 (3d Cir.1979) (“a strongly worded comment by the court questioning the defendant’s credibility may well overbear the jury’s ability to make independent fact findings”). Given that no curative instructions were given with respect to the judge’s statements about Petersen’s testimony, I believe that the judge’s comments concerning Petersen, in addition to those regarding Smith, were sufficiently prejudicial to Williams to require a new trial in this case. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478601/ | OPINION
PER CURIAM.
Dana Anugrah petitions for review of a Board of Immigration Appeals (“BIA”) decision dismissing his appeal of an Immigration Judge’s (“IJ”) decision denying his application for withholding of removal. We will deny the petition for review.
Anugrah is a native and citizen of Indonesia. He entered the United States in 2001 as a visitor. In 2003, the Immigration and Naturalization Service issued a notice to appear charging that Anugrah was subject to removal because he remained here longer than permitted. Through counsel, Anugrah conceded that he was removable as charged and applied for withholding of removal and voluntary departure. Anugrah did not seek asylum because his asylum application was untimely filed.
At his hearing, Anugrah relied on his written statement and did not provide any direct testimony. Anugrah wrote in his statement that he had worked as a delivery person. He stated that local security officials often set up roadblocks to inspect cars and trucks driving through their areas. One day in May 1997, when security was unusually tight due to rumors of demonstrations, Anugrah was accompanied by a Chinese driver. Anugrah passed through a few checkpoints without incident until he reached a checkpoint where there were no security officials. Instead local men were asking for identification. The men asked Anugrah what he was doing with a Chinese person. Anugrah told the men that they worked together. The men taunted the Chinese man and then told Anugrah that they would have to pay a tax to pass through the area. Anugrah told the men that he was a native Indonesian. The men replied that he must be Chinese if he would travel with a Chinese person. The men took the contents of the truck to cover the tax. Anugrah stated that he came to the United States to avoid being targeted based on whom he associated with.
The Government asked Anugrah a few questions about his statement and the IJ found him credible. The IJ, however, found that the single incident Anugrah described was an extortion attempt or robbery, which did not constitute persecution within the meaning of the immigration statute. The IJ also found no basis upon which to find a pattern or practice of persecution and decided that Anugrah had failed to carry his burden to show that it was more likely than not that he would be persecuted on account of a protected ground if he returned to Indonesia. The IJ granted Anugrah’s request for voluntary departure.
The BIA dismissed Anugrah’s appeal. In response to Anugrah’s argument that the IJ erred in denying asylum, the BIA noted that counsel told the IJ that Anug-rah was not seeking asylum because he did not file a timely application and that Anug-rah had not shown changed circumstances affecting his eligibility for asylum. The BIA further found no clear error in the IJ’s factual findings regarding the nature of Anugrah’s past experiences and the like*303lihood of his being harmed in the future. The BIA thus agreed with the IJ that Anugrah is ineligible for relief from removal. The BIA allowed Anugrah to voluntarily depart the United States. This petition for review followed.
We review the agency’s findings under a substantial evidence standard, which requires that we uphold those findings unless the evidence compels a contrary conclusion. Shardar v. Ashcroft, 382 F.3d 318, 323 (3d Cir.2004).
Anugrah does not argue in his brief that he suffered past persecution or that he will be harmed due to a pattern or practice of persecution in Indonesia. Rather, Anugrah asserts that he has a well-founded fear of persecution based upon his association with a Chinese person. Anug-rah, however, has not pointed to evidence supporting the conclusion that he has an individualized risk of persecution. See Lie v. Ashcroft, 396 F.3d 530, 536-37 (3d Cir. 2005) (holding that an alien who was Chinese and robbed in Indonesia failed to show a well-founded fear of persecution due to an individualized risk of harm). Anugrah does not dispute that he suffered one incident of extortion or robbery four years before he left Indonesia. In support of his argument that he will be targeted, Anugrah points to excerpts of the country report addressing discrimination against ethnic Chinese in Indonesia and police inaction during a political demonstration. These excerpts do not compel the conclusion that Anugrah has a well-founded fear of persecution if he returns to Indonesia.
Accordingly, we will deny the petition for review. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478605/ | OPINION
PER CURIAM.
Elliot Simon, proceeding pro se, appeals from the District Court’s order denying his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c). For the reasons that follow, we will affirm the District Court’s order.
I.
In February 2000, Elliot Simon pleaded guilty under a written plea agreement to conspiracy to distribute, and possession with intent to distribute, more than fifty grams of crack cocaine in violation of 18 U.S.C. § 846, contrary to 18 U.S.C. § 841(a)(1). At Simon’s sentencing hearing, the District Court adopted the factual findings and United States Sentencing Guideline (“U.S.S.G.”) applications contained in the Pre-Sentence Report (“PSR”). The PSR stated that the base offense level for Simon’s crime was 32 under U.S.S.G. § 2D1.1. The statutory mandatory minimum of incarceration was 240 months. However, as a career offender, Simon’s sentencing range was determined based on the table in U.S.S.G. § 4Bl.l(b), which provided that his base offense level was 37. Factoring in a three-level downward adjustment for acceptance of responsibility, Simon’s total offense level was 34. With a mandatory Criminal History category of VI, see U.S.S.G. § 4Bl.l(b), the Sentencing Guideline range for imprisonment was 262 to 327 months. After accepting the government’s motion for a downward departure below the mandatory minimum due to Simon’s substantial assistance, see 18 U.S.C. § 3553(e); U.S.S.G. § 5K1.1, the District Court ultimately sentenced Simon to 168 months’ imprisonment.
In 2008, Simon filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c) based on Amendment 706 to the Sentencing Guidelines, which reduced by two levels the base offense level for most crack cocaine offenses. On November 5, 2008, the District Court entered an order denying Simon’s motion. This appeal followed.
II.
We have jurisdiction over this appeal under 28 U.S.C. § 1291. We review the question of whether a reduction of sentence is warranted for abuse of discretion. United States v. Styer, 573 F.3d 151, 153 (3d Cir.2009).
In November 2007, the Sentencing Commission issued Amendment 706, which lowered “the base offense level for crack cocaine offenses under U.S.S.G. § 2D1.1(c) by two levels.” United States v. Mateo, 560 F.3d 152, 154 (3d Cir.2009). The Com*312mission later declared that the Amendment applied retroactively. Id. The vehicle for already-sentenced defendants who seek a shorter sentence based on Amendment 706 is a motion under 18 U.S.C. § 3582(c)(2). Section 3582(c)(2) authorizes a district court to reduce the sentence of a defendant “who has been sentenced to a term of imprisonment based on a sentencing range that has been subsequently lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). A sentence may be reduced under this authority only when “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” Id.
“The applicable policy statement instructs that any reduction in sentence is not authorized by 18 U.S.C. § 3582(c)(2) if an amendment ‘does not have the effect of lowering the defendant’s applicable guideline range.’ ” Mateo, 560 F.3d at 154 (quoting U.S.S.G. § 1B1.10(a)(2)(B)). The Sentencing Guidelines also provide that if “the offense level for a career offender ... is greater than the offense level otherwise applicable, the [career offender] offense level ... shall apply.” U.S.S.G. § 4Bl.l(b). “That usually will be the case, since the career offender guideline sets forth a tabulation of offense levels that are determined by reference to the statutory maximum sentences authorized for various offenses of conviction.” United States v. Caraballo, 552 F.3d 6, 10 (1st Cir.2008) (internal quotation and citation omitted).
Simon’s base offense level as a career offender under § 4Bl.l(b) was higher than the base offense level calculated under § 2Dl.l(c). The District Court therefore utilized the career offender guidelines to determine that Simon’s offense level was 34, which in turn mandated his Guideline sentence range. Accordingly, Amendment 706 affords Simon no relief because lowering the base offense level under § 2Dl.l(c) would have no effect on the sentencing range applicable to him. See Mateo, 560 F.3d at 154-55.
Simon argues that because he received a downward departure that brought his sentence below the mandatory minimum for career offenders, he was not actually sentenced under § 4B1.1. Although Simon received a non-Guideline sentence, this had no effect on the sentencing range applicable to his case, as the variance was granted “after the court ... established an appropriately calculated Guideline sentencing range.” Caraballo, 552 F.3d at 11. And because “[i]t is the sentencing range that must be lowered by an amendment in order to engage the gears of section 3582(c)(2),” Simon’s argument cannot succeed.1 Id.; United States v. Williams, 551 F.3d 182 (2d Cir.2009). Cf United States v. McGee 553 F.3d 225, 227 (2d Cir.2009) (holding that a career offender who was granted a downward departure below the career offender range qualified for a reduced sentence because “the district court explicitly stated that it was departing from the career offender sentencing range to the level that the defendant would have been in absent the career offender status calculation and consideration”).
The facts here demonstrate that the District Court did not abuse its discretion in denying Simon’s motion to reduce his sentence. Accordingly, we will affirm the District Court’s November 5, 2008 order.
. We also note that even if Simon had established his eligibility for a sentence reduction under § 3582(c)(2), the Sentencing Guidelines state that "a further reduction generally would not be appropriate” if the original sentence is a downwardly variant non-Guideline sentence. U.S.S.G. § IB 1.10(b)(2)(B). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478609/ | OPINION
MCKEE, Circuit Judge.
James E. Baranowski appeals the district court’s order granting the defendants’ motion for summary judgment on the action he brought under 42 U.S.C. § 1983. For the reasons that follow, we will af*319firm.1
We write primarily for the parties who are familiar with the factual and procedural background of this case. Thus, we will dispense with a factual summary.
As the district court noted, “the critical question is whether [Baranowski’s] speech was made pursuant to his duties as a police officer.” See Baranoiuski v. Waters, Civ. No. 05-1379, 2008 WL 728366, *19 (W.D.Pa. Mar.18, 2008); see also Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) (holding public employees’ speech is not protected if it is made “pursuant to their official duties”). In its thorough and well-reasoned Opinion of March 18, 2008 and Memorandum Opinion of August 25, 2008,2 the district court explained that Baranowski’s speech was made pursuant to his official duties and that the defendants are therefore entitled to judgement as a matter of law. Baranowski v. Waters, Civ. No. 05-1379, 2008 WL 728366 (W.D.Pa. Mar.18, 2008); Baranowski v. Waters, Civ. No. 05-1379, 2008 WL 4000406, *16 (W.D.Pa. Aug.25, 2008).
We will affirm substantially for the reasons set forth in the district court’s thoughtful opinions.
. We have jurisdiction under 28 U.S.C. § 1291.
. Baranowski moved for reconsideration under Federal Rule of Civil Procedure 59(e) of the court’s ruling on the statute of limitations, and on whether his speech was pursuant to his official duties. The district court denied Baranowski’s motion on the latter issue in a Memorandum Opinion on August 25, 2008. Baranowski v. Waters, Civ. No. 05-1379, 2008 WL 4000406, *16 (W.D.Pa. Aug.25, 2008). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478612/ | *323OPINION
SLOVITER, Circuit Judge.
I.
Appellant David Harford, who pled guilty, appeals his sentence on one count of conspiracy to manufacture, distribute, and possess with intent to distribute methamphetamine in violation of 21 U.S.C. § 846. The District Court sentenced Harford to seventy-five months of imprisonment, a three-year term of supervised release, restitution of $6952.75, and a special assessment of $100.
At sentencing, the District Court adopted the Presentence Report (“PSR”). According to the PSR, Harford had a total offense level of 29 and a criminal history category of VI. Plarford’s criminal history category was based on the District Court’s determination that he was a career offender under U.S.S.G. § 4B1.1 due to prior convictions for attempted burglary, simple assault, and resisting arrest. Under the applicable Sentencing Guideline, the imprisonment range was 151-188 months, but the District Court granted the Government’s motion under U.S.S.G. § 5K1.1 for a downward departure of three levels in recognition of Harford’s substantial cooperation with investigators. The District Court also departed downward one criminal history category based on Harford’s unopposed motion for such a departure. After the grant of these motions, Harford had a criminal history category of V and an imprisonment range of 84-105 months. The District Court imposed a non-guideline sentence of seventy-five months under 18 U.S.C. § 3553 based on Harford’s post-offense rehabilitation, strong family support, and to avoid sentencing disparity among similar co-defendants.
Harford’s appeal raises one issue: whether the District Court correctly determined that he is a career offender. Har-ford challenges the Court’s denomination of the crimes of simple assault and resisting arrest under Pennsylvania law as crimes of violence for purposes of career offender determinations.1
II.
Under U.S.S.G. § 4Bl.l(a), Harford is a career offender if he (1) was at least eighteen years old when the instant offense occurred; (2) the instant conviction is a crime of violence or involves a controlled substance; and (3) he has at least two prior convictions for felonies involving a crime of violence or a controlled substance. A crime of violence means any offense punishable by imprisonment for a term exceeding one year under federal or state law that (1) has as an element the use, attempted use, or threatened use of physical force against another, or (2) is burglary of a dwelling, arson, extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. U.S.S.G. § 4B1.2(a)(l)-(2).
The Supreme Court has held that under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(i)(B), courts must interpret the term “violent felony” by considering not only whether the crime involves a serious potential risk of injury, but also whether the crime is sufficiently similar to the enumerated crimes of burglary, arson, extortion, or the use of explosives. Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 1585, 170 L.Ed.2d 490 (2008). Although this case involves the Sentencing Guidelines, authority interpreting the defi*324nition of violent felony under the ACCA is generally applicable to cases arising under the Guidelines. United States v. Stinson, 592 F.3d 460, 464 (3d Cir.2010). Generally, courts focus on the statutory language when considering whether a specified offense qualifies as a crime of violence and not the underlying facts of the case. Begay, 128 S.Ct. at 1584.
Since Harford’s appeal, this court has held that resisting arrest is a crime of violence under Pennsylvania law. Stinson, 592 F.3d at 466-67. If attempted burglary is also a crime of violence under the Guidelines, we may affirm without reaching the issue of Harford’s prior conviction for simple assault.
In the District Court, Harford did not challenge the classification of his attempted burglary conviction as a crime of violence. On appeal, Harford did not address the crime in his brief and at oral argument Harford did not challenge the Government’s position that attempted burglary is a crime of violence. Generally, failure to argue an issue on appeal results in waiver. United States v. Pelullo, 399 F.3d 197, 222 (3d Cir.2005). Thus, any argument that attempted burglary is not a crime of violence is waived.
Even assuming waiver does not apply, this argument would fail. In James v. United States, the Supreme Court held that attempted burglary under Florida law qualifies as a crime of violence under the ACCA. 550 U.S. 192, 209, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). The applicable Florida statute defined burglary as “entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein....” Fla. Stat. Ann. § 810.02(l)(a). Attempt was defined as “any act toward the commission” of an offense. Id. at § 777.04(1). The Court reasoned that because Florida law required an “overt act directed toward entry of a structure,” the crime presented a serious risk of physical injury and therefore qualified as a crime of violence. James, 550 U.S. at 208-09, 127 S.Ct. 1586. Thus, Harford is a career offender if the applicable state statute under which he was convicted for attempted burglary is similar to the Florida law considered in James. Neither party discusses the applicable state law for Harford’s attempted burglary conviction but according to the PSR, Harford was convicted for attempted burglary in New York. We therefore turn to New York law.
III.
Under New York law, “[a] person is guilty of burglary ... when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein.” N.Y. Penal Law § 140.20. A person is guilty of attempt when “he engages in conduct which tends to effect the commission of such crime.” Id. at § 110.00. In United States v. Andrello, the Second Circuit held that third-degree attempted burglary was a crime of violence under New York law because it required the defendant to come “within dangerous proximity to the criminal end to be attained” and made “mere preparation” insufficient. 9 F.3d 247, 249 '(2d Cir.1993) (per curiam) (quoting People v. Bracey, 41 N.Y.2d 296, 392 N.Y.S.2d 412, 360 N.E.2d 1094, 1097 (1977)). Following the Supreme Court’s decision in James, the Second Circuit has reaffirmed its holding that attempted third-degree burglary under New York law is a crime of violence. United States v. Lynch, 518 F.3d 164, 170 (2d Cir.2008).
Although the PSR does not state what degree of attempted burglary Harford committed, third-degree is the lowest class of burglary under New York law. It is therefore irrelevant for which degree Har-*325ford was convicted. Because Harford’s convictions for attempted burglary and resisting arrest are crimes of violence based on applicable state law, the District Court did not err in finding that he is a career offender under U.S.S.G. § 4B1.1.
IY.
For the reasons set forth above, we will affirm the judgment of sentence.
. We have jurisdiction pursuant to 18 U.S.C. § 3742. The standard of review for questions of law, such as whether a conviction qualifies as a crime of violence, is plenary. United. States v. Hull, 456 F.3d 133, 137 (3d Cir. 2006). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478615/ | OPINION OF THE COURT
RENDELL, Circuit Judge.
Russell D. Berscht was convicted by a jury of (1) conspiracy, in violation of 18 U.S.C. § 371, (2) bank fraud, in violation of 18 U.S.C. §§ 1344 and 2, and (3), wire fraud, in violation of 18 U.S.C. §§ 1343 and 2. On appeal, Berscht argues that there was insufficient evidence to convict him of conspiracy and/or bank fraud, that the District Court erred in instructing the jury regarding aiding and abetting, and that the District Court erred in determining the amount of restitution.
Because we write only for the parties who are familiar with the factual context and procedural history of this case, we recite only the facts that are relevant to our analysis. Berscht and his co-conspirators participated in a scheme in which they stole large checks issued by United States corporations and altered those checks to make them payable to entities owned by Berscht or his co-conspirators. Berscht caused a stolen check for $350,116.24 that was drawn on Enron Corporation’s account to be sent to an accountant named Roger Hendrickson, the owner and operator of the Rurik Trust Company, which managed offshore companies in the Cayman Islands. Hendrickson deposited the check on behalf of “Mansell Investment Corporation,” a company incorporated in the Cayman Islands that was owned and controlled by Berscht. Berscht called Ru-rik Trust to confirm the receipt of the check and ask when the funds would clear. At Berscht’s direction, the stolen funds were distributed to himself, his girlfriend, his father, and others through bank accounts in the Cayman Islands, Canada, and China. Hendrickson repeatedly asked Berscht for required documentation regarding the check, but Berscht never produced this and eventually stopped returning Hendrickson’s calls. The Enron check was eventually returned by Citibank and Rurik Trust’s account was debited $350,116.24. The government also presented evidence at trial regarding Berscht’s involvement in an attempt to deposit a check stolen from the Compaq Corporation.
I. Sufficiency of the Evidence: Conspiracy
Berscht claims that there was no evidence in the record to suggest that he was anything other than an unknowing participant in others’ crimes and that it is insufficient for a conspiracy conviction to merely show that he was present when *327crimes were committed or that an illegitimate check passed through his hands. Berscht contends that there was no proof that he knew that any of the checks were altered, and that the government failed to meet its burden of proving that Berscht was a willful participant in the scheme and had knowledge of its fraudulent purpose.
Our review of whether there was substantial evidence from which the jury could have found Berscht guilty of conspiracy is plenary, but highly deferential. United States v. Bornman, 559 F.3d 150, 152 (3d Cir.2009). Berscht has a very high burden to challenge the sufficiency of the evidence. United States v. Iglesias, 535 F.3d 150, 155 (3d Cir.2008) (quotation omitted). We must view the evidence in the light most favorable to the government and affirm if there is “substantial evidence from which any rational trier of fact could find guilt beyond a reasonable doubt.” Id. (quotation omitted). Furthermore, circumstantial evidence alone is enough to defeat a sufficiency of the evidence challenge. Id. at 156.
Count I charged Berscht with conspiracy to commit bank and wire fraud, in violation of 18 U.S.C. § 371. The elements of a fraud conspiracy under § 371 are “(1) an agreement between two or more persons to commit ... fraud; (2) the defendant knowingly joined the conspiracy; and (3) one of the conspirators committed an overt act in furtherance of the conspiracy.” United States v. Gebbie, 294 F.3d 540, 544 (3d Cir.2002).
As explained by the District Court, the government produced evidence at trial that Berscht wired instructions to Rurik Trust detailing where to distribute the stolen Enron funds. There was also evidence presented that Berscht relayed instructions from other coconspirators to Rurik Trust regarding the distribution of the funds. In addition, the government adduced evidence that Berscht called Rurik Trust to confirm the receipt of the check and knew the amount of the check and that it was being shipped via Federal Express. Hendrickson testified that Berscht repeatedly avoided answering Hendrick-son’s questions about the source of the funds. Viewing the facts described above in favor of the government, there was clearly enough evidence for a rational trier of fact to find beyond a reasonable doubt that Berscht willfully participated in the scheme to commit bank and wire fraud and had knowledge of its fraudulent purpose.
II. Sufficiency of the Evidence: Bank Fraud
Berscht claims that there “was no evidence of presentment for payment or negotiation of the vast bulk of claimed altered checks which would preclude a finding of bank fraud.” Appellant’s Br. 17. Berscht contends that only the Enron check was actually presented for payment and deposited, and that none of the other checks that were referred to during the trial and in the Presentence Report were presented or offered for deposit. Berscht states that “[ajbsent an actual loss by a bank, there simply is no completed bank fraud.” Appellant’s Br. 17 (citing United States v. Thomas, 315 F.3d 190, 200 (3d Cir.2002)). This is an incorrect statement of the law. In Thomas we stated that:
the relevant requirements under the bank fraud statute are: a defendant must execute, or attempt to execute, a scheme or artifice, intended to victimize a federal bank or federally insured bank by causing it an actual or potential loss of its own funds. Where the scheme involves the mere withdrawal of funds in the bank’s custody, the Government must show that the "withdrawal exposed *328the bank to some form of liability as a result of the fraud.
315 F.3d at 206 (emphasis added).
We clarified this holding by explaining that the specific intent requirement of § 1344 is satisfied if an individual “commits an act that could put the bank at risk of loss” regardless of whether the bank actually suffers a loss. United States v. Khorozian, 333 F.3d 498, 505 (3d Cir. 2003).
Khorozian clarified Thomas’s holding regarding the mens rea element of § 1344, making clear that intent to cause a loss or liability, or an intent to harm the bank, is not required. Rather, loss, or risk of loss, goes to the consequences of the fraudulent scheme, and it need not be intended to satisfy § 1344’s mens rea requirement of a specific intent to defraud a bank.
United States v. Leahy, 445 F.3d 634, 646 (3d Cir.2006).
Under Khorozian, Thomas’s requirement of an intent to cause loss to a bank is restricted to fact patterns in which the bank is an “unwitting instrumentality” of the fraud, such as where genuine checks by an authorized signatory are cashed and pocketed instead of being used as directed by the account holder. Id. However, where a bank is the “target of deception,” as it is when it potentially negotiates counterfeit checks, there is no requirement under the bank fraud statute that the defendant intended to harm the bank. Id. Furthermore, willful blindness as to a deposit of a counterfeit check is sufficient fraudulent intent under § 1344. Khorozian, 333 F.3d at 504.
Here, the altered Enron check targeted Citibank in that it clearly placed Citibank at a risk of loss. See Khorozian, 333 F.3d at 505, n. 5 (“ ‘The general rule is a bank that pays on a forged indorsement is liable to the drawer.’ ” (quoting Univ. Premium Acceptance Corp. v. York Bank & Trust Co., 69 F.3d 695, 701 (3d Cir.1995))). Viewing the evidence in the light most favorable to the government, there is a sufficient basis for a rational trier of fact to determine that Berscht committed bank fraud.1
III. Jury Instruction on Aiding and Abetting
Berscht claims that the District Court’s jury instruction on aiding and abetting was erroneous because it failed to explain that, as an accomplice, Berscht could only be liable if he knowingly, delib*329erately and intentionally participated in a criminal act. Berscht apparently concedes that he did not object to this instruction at trial when he states that “[tjhere is no specific notation on the record as to the objections to Instruction 26.” Appellant’s Br. 2. We will therefore review the District Court’s jury instruction on aiding and abetting for plain error.
“Generally, a party who does not clearly and specifically object to a charge he believes to be erroneous waives the issue on appeal.” Alexander v. Riga, 208 F.3d 419, 426 (3d Cir.2000); see also Fed.R.Civ.P. 51(d)(1). However, we “may consider a plain error in the instructions affecting substantial rights that has not been preserved as required by Rule 51(d)(1)(A) or (B).” Fed. R.Civ.P. 51(d)(2).
Bostic v. Smyrna Sch. Dist., 418 F.3d 355, 359 (3d Cir.2005).
The District Court instructed the jury that the government must prove that Berscht “knew that the offenses charged were going to be committed or were being committed,” that Berscht “did some act for the purpose of helping or encouraging Craig Hurst and others in committing the offenses and with the intent that Hurst commit the offenses,” and that Berscht’s “acts did in some way help or encourage Mr. Hurst to commit the offense.” SA. 549-552. Furthermore, the District Court explained that:
[ejvidence that Mr. Berscht was merely present during the commission of the offenses is not enough for you to find him guilty as an aider and abetter.... In addition, if the evidence shows that Mr Berscht knew that the offenses [were] being committed or [were] about to be committed, but does not also prove beyond a reasonable doubt that it was his intent and purpose to help or encourage or otherwise associate himself with the offense, you may not find Mr. Berscht guilty as an aider and abetter. The government must prove beyond a reasonable doubt that Mr. Berscht in some way participated in the offense committed by Mr. Hurst and others as something that he wished to bring about and to make succeed.
Id.
The District Court made it clear to the jury that in order to find Berscht guilty of aiding and abetting they would have to find that he knowingly, deliberately and intentionally participated in a criminal act. The District Court did not err, let alone plainly err, in instructing the jury regarding aiding and abetting.
IV. Restitution
Berscht claims that the District Court erred in ordering restitution for unproven amounts and failing to give credit for known offsets. We review the appropriateness of a restitution award for abuse of discretion. United States v. Fallon, 470 F.3d 542, 548 (3d Cir.2006). Berscht was ordered to pay a total of $214,900 in restitution ($184,000 to Roger Hendrickson and $30,900 to Octagon Capital). Berscht contends that there is nothing in the record to support these restitution orders. The government concedes that the case should be remanded to the District Court to redetermine the amount of loss to Octagon Capital. Appellee’s Br. 36-37. However, the government contends that the restitution ordered to be paid to Hendrickson is supported by the record. Hendrickson testified at trial as to his losses (SA 561, 588, 70-73) and provided an affidavit of loss in the amount of $184,000 to the probation office. PSR ¶ 34. Therefore, there is no indication that the District Court abused its discretion in ordering that Berscht pay $184,000 in restitution to Hendrickson.
*330For the reasons stated above, we will REMAND this case for a determination of the restitution amount owed to Octagon Capital and will AFFIRM on all other issues.
. In the same section of his brief, Berscht also claims that the references in the Presentence Report and the "record” to other checks, the "Texas checks,” are prejudicial because they are not relevant to a completed crime as they were never presented to a bank for deposit. Appellant's Br. 18-19. It is unclear whether Berscht is claiming that this evidence should not have been admitted at trial, in which case he does not indicate that he preserved this argument by objecting, or if he is claiming that the District Court erred in considering this evidence in deciding his sentence. Although Berscht claims that there "was nothing in the trial record regarding these checks” he also states that "[i]t is impossible at this point to separate out the effect that allusions and references to these matters dehors the record may have had on the jury in finding guilt or upon the Court in imposing sentence.” Appellant’s Br. 19-20. The government correctly points out that Berscht himself testified on direct examination as to receiving these checks. SA. 314-319. The government also claims that it was unaware of the checks until Berscht produced them during discovery, the checks were not referenced in the indictment, the police report contained no references to the checks, and the government never contended that they were part of the bank fraud offense. Appellee’s Br. 28. Berscht provides no evidence to suggest that evidence of the checks was improperly admitted or that the District Court improperly considered any factors in deciding Berscht's sentence. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478617/ | OPINION
AMBRO, Circuit Judge.
James Schollmeyer pled guilty in the District Court of New Jersey to one count of mail fraud and was sentenced to 27 months’ imprisonment. He now appeals that sentence as substantively unreasonable. We affirm.1
*331i.
In 2003, Schollmeyer began working for Superior Mortgage Company in Parsippa-ny, New Jersey as a senior loan officer and assistant branch manager. In January 2007, he deposited five mortgage broker checks payable to Superior, totaling $24,070.25, into his personal bank account. His employer discovered Schollmeyer’s theft and confronted him. Schollmeyer apologized and repaid the company $20,110.50. At the time, his employer did not call law enforcement.
Schollmeyer continued to steal from Superior over the next four months. He opened an unauthorized account in the name of Superior Mortgage, and diverted 27 broker fee checks, totaling $200,331.17, into this account. He was once again caught by his employer and subsequently fired. The FBI began investigating and, according to the Government, Schollmeyer began cooperating after an agent visited his home. In March 2008, Schollmeyer pled guilty to one count of mail fraud (in violation of 18 U.S.C. § 1341).
He was sentenced in March 2008. The United States Probation Office determined that his total offense level was 18, which included a three-level decrease for his acceptance of responsibility. Schollmeyer’s Guideline range was 27 to 33 months’ imprisonment. At sentencing, the District Court considered Schollmeyer’s arguments for a downward variance, but declined to vary from the Guidelines range. The Court sentenced Schollmeyer to 27 months’ imprisonment, followed by five years of supervised release. He timely appealed.
II.
Schollmeyer does not contend that the District Court committed any procedural error at sentencing. Rather, he argues that the Court gave insufficient weight to three mitigating factors making the ultimate sentence substantively unreasonable: (1) the psychological diagnosis report that Schollmeyer suffered from “extreme optimism”; (2) his “extraordinary” acceptance of responsibility; and (3) his community service. We disagree.
“Our substantive review requires us not to focus on one or two factors, but on the totality of the circumstances.” United States v. Tomko, 562 F.3d 558, 567 (3d Cir.2009) (en banc) (citing Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)). “[I]f the district court’s sentence is procedurally sound, we will affirm it unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” Id. at 568.
Schollmeyer first argues that his psychological diagnosis of “extreme optimism” warranted greater mitigating weight by the Court. He claims that because of this condition, he believed he would be able to repay everyone and not suffer any negative consequences.
Next, Schollmeyer contends that the District Court should have given a lesser sentence because of his “extraordinary” acceptance of responsibility by turning himself in, cooperating with law enforcement, and beginning restitution payments, all before charges had been filed.
Lastly, Schollmeyer argues that his participation in a community service organization, which assists individuals facing foreclosure, should have been given greater weight.
The District Court considered a variety of circumstances under 18 U.S.C. § 3553(a), including the matters raised by Schollmeyer in this appeal, in fashioning his sentence. The Court noted the seri*332ousness of the crime, the nature and circumstances of his offense, the amount of money involved in the offense, the psychological evaluation, Schollmeyer’s volunteer activities, and his acceptance of responsibility. Having reviewed all that information, the District Court reached its decision to sentence Schollmeyer to 27 months in prison, at the low end of the Guidelines range. The Court’s decision not to give certain mitigating factors the weight that Schollmeyer contends they deserve does not render his sentence substantively unreasonable. See United States v. Bungar, 478 F.3d 540, 546 (3d Cir.2007).
After our review of the record, we cannot say that no reasonable sentencing court would have imposed the sentence meted out by the District Court. Tomko, 562 F.3d at 568. Accordingly, we affirm that sentence.
. The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). "The abuse-of-discretion standard applies to both our procedural and substantive reasonableness inquiries.” United States v. Tomko, 562 F.3d 558, 567 (3d Cir.2009) (en banc). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478619/ | OPINION
PER CURIAM.
Fredy Horacio Posada-Martinez petitions for review of an order of the Board of Immigration Appeals (BIA). For the reasons below, we will grant the petition for *334review and remand the matter to the BIA to address Posada-Martinez’s motion to remand with respect to his claim under the Convention Against Torture (CAT).
Posada-Martinez, a native of Colombia, entered the United States in December 2005. He was charged as removable as an alien without valid entry documents. He conceded removability and applied for asylum, withholding, and CAT relief. He argued that he had been threatened in Colombia by the guerrillas of the Revolutionary Armed Forces of Colombia (FARC) on account of his political opinion and his membership in a particular social group. After a hearing, the IJ found Po-sada-Martinez credible but denied relief. Posada-Martinez appealed to the BIA and filed a motion to remand based on his brother’s murder in Colombia.
The BIA dismissed the appeal. It concluded that the threats and physical assault Posada-Martinez experienced in the past were not severe enough to constitute persecution. The BIA concluded that the IJ’s determination that the guerillas were only interested in Posada-Martinez’s money was not clearly erroneous. The BIA rejected Posada-Martinez’s argument that he was targeted by the guerrillas because he was a union leader or based on an actual or imputed political opinion. The BIA denied Posada-Martinez’s motion to remand based on his brother’s murder in Colombia. It determined that the murder did not constitute persecution and that Po-sada-Martinez was unable to show that one central reason for his brother’s death was on account of a protected ground. Posada-Martinez filed a timely petition for review.
We have jurisdiction pursuant to 8 U.S.C. § 1252. To establish eligibility for asylum, Posada-Martinez must demon-sti'ate either past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. See Vente v. Gonzales, 415 F.3d 296, 300 (3d Cir.2005). He needs to show that the protected ground was or will be at least one central reason for the persecution. 8 U.S.C. § 1158(b)(l)(B)(i). For withholding of removal, he must demonstrate that it was more likely than not that his life would be threatened in Colombia on account of one of these protected grounds. Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir.2003); 8 U.S.C. § 1231(b)(3)(A). To be eligible for withholding of removal under the Convention Against Torture, Posada-Martinez needs to show that it is more likely than not that he would be tortured if removed to Colombia. 8 C.F.R. § 208.16(c)(2).
We review the BIA’s factual determinations under the substantial evidence standard. Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.2003)(en banc). The BIA’s findings are considered conclusive unless “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We exercise de novo review over the BIA’s legal decisions. Toussaint v. Attorney General, 455 F.3d 409, 413 (3d Cir.2006).
At his hearing, Posada-Martinez testified that he had worked on his family’s farm and had been the president of a community group called the Union for Community Action (Union). A.R. at 129. He stated that his first direct encounter with the guerillas was in August 2004. The guerillas were friendly, asked him how things were on the farm and at the Union, and stated that they wanted an economic or financial collaboration. A.R. at 134. Posada-Martinez believed their request was extortion but did not take it seriously or pay them any money. He testified that during a subsequent encounter the guerillas told him if he did not pay, they would *335harm him and his family. The guerillas asked for approximately $50,000. A.R. at 135. Posada-Martinez believed that the guerillas thought he had access to money because the farm was going well and he had access to the Union’s money. He stated that during the most hostile encounter he was hit on the shoulders with the back of a gun. A.R. at 136. Posada-Martinez had no contact with the guerillas while the military was patrolling the area during May and June of 2005 but they returned once the military left. A.R. at 136-37.
Posada-Martinez submitted documents to support his claims. In a letter dated May 2005, the guerillas stated that they had heal'd that Posada-Martinez was influential in his job. They stated that he must pay one hundred million pesos within forty-five days. They indicated that they knew he had access to the budget of the Union. They warned him that if he went to the police, he and his family would pay the consequences. A.R. at 189. In July 2005, Posada-Martinez received another communication from the guerillas asking for money. In a letter dated August 28, 2005, the guerillas noted that he had not complied with their last request and that he should consider himself their “military objective” for not fulfilling his duty. A.R. at 192. In response, Posada-Martinez moved to another city. When his former employees told him that the guerillas were looking for him, he left and came to the United States.
Past Persecution
Posada-Martinez argues that he is entitled to asylum based on past persecution on account of his membership in a particular social group of landowning farmers and community leaders. We need not reach the question of whether the threats made against Posada-Martinez constituted past persecution or whether union leaders1 may be considered a particular social group. He is unable to show that the record compels a finding that his membership in a particular social group was a central reason for any past persecution. The BIA determined that the guerrillas’ inquiry into Posada-Martinez’s position in the Union did not show that his position was a central reason for their actions. The BIA upheld the IJ’s finding that the guerrillas were interested only in Posada-Martinez’s money. This finding is supported by the evidence described above.
Posada-Martinez argues that he testified that the guerrillas targeted him because he ran the farm and was president of the Union. He also points out that the guerrillas noted that he was influential in his job. However, this statement was followed by a demand for money and the guerrillas noting that they knew Posada-Martinez had access to the Union’s money. A.R. at 189. The guerrillas’ statement regarding Posada-Martinez’s influence at the Union does not compel a finding that his union leadership was a central reason for the guerrillas’ treatment of him.
Future persecution
Posada-Martinez contends that he has established a well-founded fear of future persecution on account of his membership in a particular social group of landowners and union leaders who have resisted FARC’s threats and fled. However, as noted earlier, Posada-Martinez argued before the BIA that the social group he belonged to was union leaders.2 *336As discussed above, the BIA determined that the guerrillas were interested only in Posada-Martinez’s money, and we conclude that the record does not compel a finding that he will be persecuted based on his status as a union leader.
Posada-Martinez also argues that he had a well-founded fear of persecution on account of an imputed political opinion. He contends that it is self-evident that the guerrillas will attribute an anti-FARC political opinion to him because he did not comply with their demands. However, the Supreme Court has rejected a similar argument — that a guerrilla organization’s attempt to conscript a person necessarily constituted persecution on account of political opinion. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 482, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).
Posada-Martinez quotes from our non-precedential opinion in Arias v. Gonzales, 143 Fed.Appx. 464 (3d Cir.2005) as support for his argument that his refusal to give money to the FARC guerrillas will cause them to impute an anti-FARC political opinion. “[T]he FARC is known to extort so-called ‘war taxes’ from civilians in order to finance its operations. Payment of war taxes is especially common in sections of Colombia controlled by the FARC. Refusal or inability to pay these war taxes is viewed as an act of political opposition and often results in reprisal.” Id. at 465. We are not bound by dicta from opinions that are not precedential. 3rd Cir. I.O.P. 5.7; see also 8 U.S.C. § 1252(b)(4)(A) (“[T]he court of appeals shall decide the petition only on the administrative record on which the order of removal is based.”).
Posada-Martinez asserts that the fact that the guerrillas labeled him a “military objective” demonstrates that the guerrillas imputed an anti-FARC political opinion to him. However, this is not sufficient to demonstrate that a reasonable fact-finder would be compelled to find that the guerrillas targeted him based on his political opinions.
Relief under the Convention Against Torture
3
The BIA concluded that PosadaMartinez had waived his claim to CAT relief because he failed to raise it on appeal. The only mention of CAT relief in his brief before the BIA was in the penultimate sentence. “Based on the arguments detailed above, Respondent [ ] requests that he be granted asylum, withholding of removal and/or protection under the Convention Against Torture.” A.R. at 45. Citing Hoxha v. Holder, 559 F.3d 157, 163 (3d Cir.2009), Posada-Martinez contends that his reference to CAT relief was sufficient to exhaust the issue. In Hoxha, the petitioner explicitly challenged the IJ’s denial of his motion for a continuance in his notice of appeal: “The Immigration Judge erred in denying [the] request for a continuance as his previous attorney withdrew just prior to his individual hearing. For this reason, [Hoxha’s] counsel was not able to assist him in preparing his claim.” Id. at 158. However, the petitioner failed to raise the issue in his brief before the BIA. We held that he had sufficiently exhausted the issue. “[T]he identification of an issue in a party’s notice of appeal satisfies the statutory requirement of exhaustion provided that the description of that issue in the notice sufficiently apprises the BIA of the basis for the appeal.” Id. at 159.
Here, Posada-Martinez merely requested relief under the CAT. He made no argument as to why he was entitled to *337relief, nor did he challenge the IJ’s denial of CAT relief in any way.4 His passing reference to CAT relief did not give the BIA sufficient notice of the basis for his appeal of the denial of CAT relief. Thus, he failed to exhaust this issue, and we lack jurisdiction to review it. 8 U.S.C. § 1252(d)(1).
Motion to remand
Posada-Martinez challenges the BIA’s denial of his motion to remand. He submitted evidence that his brother had been murdered in the same area where he himself had been threatened by the guerrillas. The BIA noted that there was no indication as to why his brother was killed and that Posada-Martinez was unable to demonstrate that one central reason for his brother’s death was on account of a protected ground.
A motion to remand is the functional equivalent of a motion to reopen. Korytnyuk v. Ashcroft, 396 F.3d 272, 282 (3d Cir.2005). Under 8 C.F.R. § 1003.2(c), the BIA may not grant a motion to reopen unless the evidence offered is material and previously unavailable. While Posada-Martinez argues that the BIA wrongly decided that he had not conclusively established his eligibility for asylum, we believe that the BIA denied the motion to remand on the ground that the evidence offered was not material to the issue of whether any alleged persecution was or would be on account of a protected ground. We review the BIA’s denial of a motion to remand on that basis for an abuse of discretion. INS v. Abudu, 485 U.S. 94, 105, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). Under an abuse of discretion standard, we will 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 conclude that the BIA did not abuse its discretion in denying the motion to remand with respect to Posada-Martinez’s claims for asylum and withholding of removal. The new evidence does not support his claims that he was or will be persecuted on account of a protected ground.
However, the BIA did not address this new evidence with respect to the CAT claim. To receive relief under the CAT, Posada-Martinez need not show that any torture will be on account of a protected ground. Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 349 (3d Cir.2008). While Posada-Martinez waived any challenge to the IJ’s denial of CAT relief based on the record before the IJ, he did raise the issue of whether his new evidence was sufficient to support a remand to the IJ. Because the BIA failed to address whether the CAT claim should be remanded to the IJ in light of Posada-Martinez’s new evidence, we will grant the petition and remand the matter to the BIA to address this limited issue; In all other respects, we will affirm the BIA’s decision.
. We agree with the government that Posada-Martinez did not exhaust his argument that the guerrillas targeted him based on his status as a landowner.
. The IJ noted that Posada-Martinez had not identified any particular social group to which he belonged. A.R. at 70.
. Posada-Martinez also applied for withholding of removal. Because he has not met the standard for asylum, he cannot meet the higher standard for withholding of removal. Ghebrehiwot v. Att'y Gen., 467 F.3d 344, 351 (3d Cir.2006).
. The IJ noted in his opinion that Posada-Martinez had not specifically mentioned torture. A.R. at 68. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478620/ | OPINION
PER CURIAM.
Luis Alberto Pretelt, a citizen of Colombia, was admitted to the United States as lawful permanent resident on October 23, 1999. On August 9, 2005, he was convicted of arson in the third degree in New Jersey under N.J. Stat. Ann. §§ 2C:17-l(b)(l) and 2C:2-6.1 On January 16, 2008, the Government charged him as removable under 8 U.S.C. § 1227(a)(2)(A)® for having committed, within five years of becoming a lawful permanent resident, a crime of moral turpitude for which a sentence of one year or more may be imposed. Pretelt applied for cancellation of removal. The Immigration Judge (“IJ”) denied Pretelt’s application and determined that Pretelt was removable as charged. Pretelt appealed to the BIA, which affirmed the IJ’s decision and dismissed Pretelt’s appeal.
Pretelt presents a petition for review. The Government initially submitted a motion to dismiss Pretelt’s petition, arguing that the Court lacks jurisdiction because Pretelt was convicted of a crime involving moral turpitude and raises no legal or *339constitutional issues. However, in its brief, the Government does not pursue its jurisdictional argument, instead requesting that we deny the petition on the merits. As the Government realizes, we retain jurisdiction under 8 U.S.C. § 1252(a)(2)(D) over constitutional claims and questions of law raised in a petition for review. Accordingly, we deny the Government’s motion and review the issue that Pretelt raises, namely whether his crime was a crime of moral turpitude. Cf Garcia v. Attorney Gen. of the United States, 462 F.3d 287, 291 (3d Cir.2006).
The specific issue is whether the crime (arson in the third degree) for which Pre-telt was convicted is a crime of moral turpitude. (It is undisputed that Pretelt committed a crime (on May 11, 2004) within five years of becoming a lawful permanent resident (on October 23, 1999) for which he was subject to a term of imprisonment of one year or more, see N.J. Stat. Ann. § 2C:43-6(a)(3).) Upon review, we hold that the agency reasonably concluded that Pretelt committed a crime of moral turpitude.
In Partyka v. Attorney General of the United States, we summarized the inquiry into whether a crime involves moral turpitude:
Whether an alien’s crime involves moral turpitude is determined by the criminal statute and the record of conviction, not the alien’s conduct.... Under this categorical approach, we read the applicable statute to ascertain the least culpable conduct necessary to sustain a conviction under the statute.... As a general rule, a criminal statute defines a crime involving “moral turpitude only if all of the conduct it prohibits is tur-pituclinous.” ... Where a statute covers both turpitudinous and non-turpitu-dinous acts, however, it is “divisible,” and we then look to the record of conviction to determine whether the alien was convicted under that part of the statute defining a crime involving moral turpitude.
417 F.3d 408, 412 (3d Cir.2005) (citations omitted); see also Jean-Louis v. Attorney Gen. of the United States, 582 F.3d 462, 466 (3d Cir.2009) (describing our limited factual inquiry to determine the specific subpart under which a defendant was convicted in cases in which the statute of conviction is “divisible”).
The section of the statute under which Pretelt was convicted reads as follows:
b. Arson. A person is guilty of arson, a crime of the third degree, if he purposely starts a fire or causes an explosion, whether on his own property or another’s:
(1) Thereby recklessly placing another person in danger of death or bodily injury[-]
N.J. Stat. Ann. § 2C:17-l(b)(l). New Jersey defines the term “recklessly” as follows:
Recklessly. A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation. “Recklessness,” “with recklessness” or equivalent terms have the same meaning.
N.J. Stat. Ann. § 2C:2-2(b)(3).
The recklessness required for Pretelt’s conviction under New Jersey law is recklessness in regard to the life or bodily integrity of another. Accordingly, the BIA did not err in concluding the crime implicated “accepted rules of morality and the duties owed to society.” Knapik v. *340Ashcroft, 384 F.3d 84, 90 (3d Cir.2004). In Knapik, we held that the BIA did not act unreasonably in concluding that a first degree reckless endangerment statute, which contained aggravating factors requiring a defendant to create a “ ‘grave risk of death to another person’ ” “ ‘under circumstances evincing a depraved indifference to human life,”’ described a crime involving moral turpitude. Id. As we stated in Partyka (citing Knapik), we have expressed approval of the BIA’s decision to find “moral turpitude to inhere in serious crimes committed recklessly, i.e., with a conscious disregard of a substantial and unjustifiable risk that serious injury or death would follow.” 417 F.3d at 414. The arson crime at issue in this case, with requisite recklessness in relation to the risk of injury or death, is not sufficiently distinguishable from the crime in Knapik to justify a different result.
In short, for the reasons stated, we deny the Government’s motion to dismiss and we will deny the petition for review.
. Section 2C:2-6 is a general liability provision. Section 2C:17-1 describes arson and related offenses; although it has many sections, diere is no dispute that Pretelt's conviction was under subsection (b)(1). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478622/ | OPINION
PER CURIAM.
Jian Li Zheng has filed a petition for review of the final order by the Board of *341Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ” ’s) denial of Zheng’s requests for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). For the reasons that follow, we will deny the petition for review.
The parties are familiar with the background of this case, and so we provide only a summary of the proceedings. Zheng is a native and citizen of the People’s Republic of China who arrived in the United States in December 2005. She was placed in removal proceedings as an arriving alien without a valid entry document (8 U.S.C. § 1182(a)(7)(A)(i)(I)). She conceded re-movability and applied for asylum, withholding of removal, and CAT relief as a Falun Gong practitioner. The IJ held an evidentiary hearing on Zheng’s claims on December 21, 2006.
Zheng testified about her involvement with Falun Gong. Zheng stated that she often had been ill with throat infections and fever, and she had a growth or lump in her throat, as diagnosed by a doctor in China. She later described her condition as a “big membrane of cells” near her mouth. A friend with similar health afflictions introduced her to the practice of Falun Gong. Zheng began her practice in 2003, and her throat condition improved. Zheng stated that she used to practice Falun Gong every day, either at her home or at her friend’s house. While at her friend’s house in November 2004, her parents telephoned to tell her that the police had searched their home looking for her because of her Falun Gong activities. Zheng did not return home and instead went to live with her grandaunt, who lived about two hours away. She testified that in January 2005, the police came to her grandaunt’s home while Zheng was outside, gathering flowers on the mountain near her grandaunt’s home. She saw the police cars and remained out of view until they departed. Her grandaunt later told Zheng that the police had accused her of violating the law by practicing Falun Gong. Zheng then went to- stay at another friend’s house, and then she arranged to come to the United States. Zheng stated that the police continued to visit her home about once a week during this period and that her parents were threatened with arrest if she did not surrender. She fears returning to China because she would be arrested for her Falun Gong practice and for illegally fleeing the country. Zheng submitted supporting documentation, including identity documents and a letter from her father.
On cross-examination, Zheng stated that she was not certain about how often the police visited her parents’ home to look for her, but she affirmed that her parents have not been arrested despite that threatened outcome. When asked why she had testified that the police came to look for her at her grandaunt’s house in January 2005 when her written statement indicated that the event occurred in May 2005, Zheng changed her testimony, affirming that the date was May 2005. As further explanation, she stated that the interpreter was speaking too quickly. The IJ explored whether there possibly could have been a misunderstanding or interchangeability of the Chinese words for “January” and “May,” and whether the interpreter heard “May” but interpreted “January”; the IJ observed that the words in Chinese were completely different in sound. Ultimately, in attempting to clarify her testimony concerning the relevant date, Zheng explained that she had testified regarding her arrival at her grandaunt’s house in November 2004 and the events that followed, then stated, “I don’t know if I said November and January and got confused.” (A.R. 108.)
*342The IJ found that Zheng lacked credibility, denied all forms of relief, and ordered removal to China. On August 25, 2008, the BIA dismissed the appeal. The BIA found no clear error in the IJ’s adverse credibility determination, citing Zheng’s unpersuasive testimony regarding her medical condition, how authorities first discovered her activities, and dates when police searched for her. This petition for review followed.
We have jurisdiction to review the BIA’s final order of removal under 8 U.S.C. § 1252(a). To the extent that the BIA deferred to the IJ’s credibility findings, we will review the IJ’s decision as supplemented by the BIA. See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.2004). Credibility determinations are reviewed under the substantial evidence standard. See id. at 243. Adverse credibility determinations based on speculation or conjecture, rather than on record evidence, are reversible. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). Zheng’s asylum application was filed after May 11, 2005, and thus the provisions of the REAL ID Act apply. See Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir.2007). Under the REAL ID Act, an adverse credibility determination can be based on inconsistencies, inherent implausibilities, inaccuracies, and other factors, without regard to whether they go to the heart of an applicant’s claim. 8 U.S.C. § 1158(b)(l)(B)(iii). The Court must uphold the credibility determination of the BIA unless “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
Zheng tacitly challenges the applicability of the REAL ID Act provision regarding credibility determinations, contending that the agency’s adverse credibility determination rests upon minor and irrelevant discrepancies. We need not consider the effects of the new provisions, however, because we conclude that substantial evidence supports the adverse credibility determination on matters that concern the heart of Zheng’s claim. For example, the BIA noted Zheng’s unpersuasive testimony regarding the dates the police searched for her — an issue which Zheng concedes is a material issue to her asylum claim. See Petr’s Br. at 14. Her initial testimony indicating a January 2005 date was inconsistent with her changed testimony and her written statement indicating a May 2005 date. This date discrepancy concerns an event that was purportedly pivotal in Zheng’s decision to flee to the United States. We agree with the BIA’s conclusion that Zheng’s explanations at the hearing were inadequate to resolve the inconsistencies. We conclude that the record contains substantial evidence to support the adverse credibility finding and does not compel a contrary finding.1
We discern no reason to disturb the agency’s denial of asylum and withholding of removal. Zheng presents no argument regarding her claim for protection under the CAT. We deem any challenge to the denial of CAT relief to be waived and will not address it. See Lie v. Ashcroft, 396 F.3d 530, 532 n. 1 (3d Cir.2005).
We will deny the petition for review. The government’s motion to proceed on the administrative record is granted.
. Because substantial evidence supports the adverse credibility finding, we need not reach Zheng's arguments relating to her eligibility for asylum relief. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478624/ | OPINION
AMBRO, Circuit Judge.
Thomas Milton Street appeals his conviction for three counts of willfully failing to file federal income tax returns for tax *344years 2002 through 2004, in violation of 26 U.S.C. § 7203.1 For the following reasons, we affirm the District Court’s judgment.
I.
In November 2006, Street was indicted on various counts of mail fraud, wire fraud, honest services fraud, assisting in filing false tax returns, and failing to file federal income tax returns. In February 2008, after a two-week trial, a jury convicted Street only for failing to file tax returns. He filed a motion for a stay of sentence pending appeal and a motion for a new trial. The District Court denied the motions, and sentenced Street to 30 months’ imprisonment.
II.
Because Street is proceeding pro se, we construe his briefs liberally. He makes four arguments on appeal: (1) the evidence presented at trial was insufficient to establish he willfully failed to file tax returns; (2) the indictment was constructively amended at trial by the evidence, arguments, and jury instructions; (3) the District Court precluded him from presenting a meaningful defense; and (4) he received ineffective assistance of counsel.
A. Sufficiency of the Evidence
Street first challenges the sufficiency of the evidence to convict him for willful failure to file tax returns in 2002 through 2004. To sustain the conviction, the evidence must be sufficient to prove each of the following elements beyond a reasonable doubt: (1) he was required to file the tax returns; (2) he failed to file them; and (3) his failure was willful. United States v. McKee, 506 F.3d 225, 244 (3d Cir.2007). “Willfulness requires the voluntary, intentional violation of a known legal duty as a condition precedent to criminal liability.” Id. at 236 (citing Cheek v. United States, 498 U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991)).
“‘We apply a particularly deferential standard of review when deciding whether a jury verdict rests on legally sufficient evidence.’ ” United States v. Soto, 539 F.3d 191, 193-94 (3d Cir.2008) (quoting United States v. Dent, 149 F.3d 180, 187 (3d Cir.1998)). We will sustain the verdict if, viewing the evidence in the light most favorable to the Government, “ ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Id. at 194 (quoting Dent, 149 F.3d at 187).
At trial, an IRS analyst testified that Street filed federal income tax returns (Form 1040) for the years 1992-2001, but that the IRS did not receive any tax returns from Street for the years 2002-2004. An IRS revenue agent testified about the federal income tax return filing requirements, and the Government presented evidence that Street’s income exceeded the base amount triggering those requirements.
The Government also presented the testimony of Street’s former accountant, Fred Johnson. In the 1990s, Street enlisted Johnson’s firm to bring his taxes up to date. Johnson testified that he prepared Street’s tax returns, installment agreements, and extension requests, and that he spoke to Street about his obligation to file a tax return and to make payments under the installment agreement in place with the IRS. Johnson further testified that he did not prepare a tax return for Street in 2002-2004, although he attempted to gath*345er Street’s personal income and expense information for those years.
Street makes two arguments that this evidence was insufficient to establish his guilt. First, he argues that while there is no dispute he failed to file his tax returns in those years, there was no evidence he failed to “make” the returns. Presumably, Street’s theory is that he did not violate 26 U.S.C. § 7203 because his accountant “made” his returns (a strange argument given the accountant’s trial testimony that he did not in fact prepare the returns), even though Street admits he did not “file” them. This argument assumes that § 7203’s directive to “make” a tax return is different than a requirement to “file” that return.2 It is not. As the Court of. Appeals for the Seventh Circuit has explained, “[mjaking a tax return is a term of art for the combination of completing and filing; any accountant or lawyer would have told [the defendant] so, had he asked.” United States v. Dunkel, 900 F.2d 105, 108 (7th Cir.1990), vacated on other grounds, 498 U.S. 1043, 111 S.Ct. 747, 112 L.Ed.2d 768 (1991). Street’s creative reinterpretation of the statute’s use of “to make” as “to fill out” or “to complete” is without basis. (Nor, we note, was this theory presented to the jury.)
Second, Street argues that the Government failed to prove willfulness because he had a “good faith belief’ that he was not required to file tax returns. Specifically, Street testified he believed that he was not required to fill out IRS Form 1040A because the form did not satisfy the Paperwork Reduction Act (“PRA”). However, the jury heard evidence that Street had filed his federal income tax returns for years before stopping. His accountant informed Street of his duty to file tax returns, and Street in fact retained that accountant because he (Street) was behind on his tax returns and wanted to become current. The jury was free to reject Street’s testimony that he was acting with a good faith belief he was not required to file tax returns.
B. Constructive Amendment
Street alleges the indictment was constructively amended because, while it charged him with failing to “make” an income tax return, the Government’s theory of prosecution, reflected in the evidence presented at trial and the jury instructions, was that he failed to “file” a tax return for the relevant years.
“An indictment is constructively amended when evidence, arguments, or the district court’s jury instructions effectively ‘amend[s] the indictment by broadening the possible bases for conviction from that which appeared in [it].’ ” McKee, 506 F.3d at 229 (quoting United States v. Lee, 359 F.3d 194, 208 (3d Cir.2004)) (alteration in original).
However, as discussed above, there is no difference between “making” a tax return and “filing” a tax return. Failing to “file” a tax return is thus the same as — not broader than — failing to “make” a tax return. There was no error.
C. Constitutional Right to Present a Meaningful Defense
During trial, Street subpoenaed two high-level government officials to testi*346fy about whether IRA Form 1040 complied with the PRA. The District Court quashed the subpoenas, ruling that the proposed testimony had no relevance to the criminal charges. According to Street, this effectively deprived him of his constitutional right to present evidence in support of his defense theory, in violation of the Compulsory Process clause of the Sixth Amendment.3 Street argues that he had a right to present testimony of Office of Management and Budget (“OMB”) and IRS officials in support of his defense that he had a good faith belief he was not required to file tax returns based on the PRA.
This argument fails. Street must prove: “[fjirst, that he was deprived of the opportunity to present evidence in his favor; second, that the excluded testimony would have been material and favorable to his defense; and third, that the deprivation was arbitrary or disproportionate to any legitimate evidentiary or procedural purpose.” Mills, 956 F.2d at 446.
Street was allowed to present his PRA theory when he testified. There is no indication how the officials’ testimony would have been material to his defense. As the Government notes, “Street has never explained how the testimony of high-level government witnesses he never met would impact on his subjective belief’ that he need not file tax returns. Gov’t Br. 31-82.
Indeed, defense counsel did not argue to the District Court at trial that these witnesses would provide testimony relevant to Street’s subjective good faith belief. The defense argued instead that their testimony would be relevant because a failure to comply with the PRA is a defense to the failure to fill out tax forms. Gov’t Supp’l App. 1303-08. As the District Court recognized, courts have repeatedly rejected this frivolous defense. See, e.g., United States v. Patridge, 507 F.3d 1092, 1094-95 (7th Cir.2007); United States v. Neff, 954 F.2d 698, 700 (11th Cir.1992) (concluding that “the PRA provides [the defendant] no refuge from his statutorily-imposed duty to file income tax returns”); United States v. Flicks, 947 F.2d 1356, 1359-60 (9th Cir. 1991) (holding that the PRA “constitutes no defense to prosecution under 26 U.S.C. § 7203,” and noting that the “PRA was not meant to provide criminals with an all-purpose escape hatch”). Even if the PRA were violated (although we cannot fathom how, as Form 1040 in fact has a valid OMB control number), the obligation to file federal income tax returns stems from a federal statute, while the PRA applies to agency regulations, and thus the PRA has no effect on the IRS’s ability to enforce the statutory obligations requiring taxpayers to file federal income tax returns.
D. Ineffective Assistance of Counsel
Street’s final issue on appeal is an ineffective assistance of counsel claim, based primarily on the issues related to those we reject above and as well as the Speedy Trial Act. “This Court generally does not review Sixth Amendment ineffective assistance of counsel claims on direct appeal,” United States v. Olfano, 503 F.3d 240, 246 (3d Cir.2007), and we will not do so here.
For these reasons, we affirm Street’s conviction.
. The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291. Street did not appeal his sentence.
. 26 U.S.C. § 7203 provides, in relevant part, "Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof to make a return, keep any records, or supply any information, who willfully fails to pay such estimated tax or tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor. ..."
. To the extent Street's complaint is grounded in due process, we reach the same conclusion. See Gov’t of Virgin Islands v. Mills, 956 F.2d 443, 446 n. 4 (3d Cir.1992) (noting that there is "apparently little, if any" difference between the analysis under the Due Process clause and the Compulsory Process clause). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478626/ | OPINION
PER CURIAM.
Edward Donnelly, proceeding pro se, appeals from an order of the United States District Court for the Middle District of Pennsylvania dismissing his complaint alleging legal malpractice and other claims against his workers compensation attorneys. We will affirm.
Donnelly filed a complaint, which he amended, against the law firm of *348O’Malley & Langan, P.C., and its attorneys (collectively referred to as the “O’Malley defendants”), who represented him on a workers compensation claim that was settled on July 12, 2007. Donnelly alleged that the O’Malley defendants failed to investigate his workers compensation claim before negotiating a settlement. Against his express directive, counsel also disclosed his letter of resignation to the employer before settlement. He claimed that the O’Malley defendants improperly obtained and disclosed confidential information about him without his authorization. In August 2007, Donnelly terminated his contract for legal services with the O’Malley defendants, and filed a pro se penalty petition claiming that his employer failed to send him a settlement check in the specified time period. During the pen-dency of the penalty petition proceedings, the employer delivered the check to the O’Malley defendants, who allegedly opened it without Donnelly’s permission and threw away the envelope.1 Donnelly claimed that the O’Malley defendants deliberately interfered with the penalty proceedings by destroying the envelope, which, according to him, constituted material evidence in his case. He also alleged that when they no longer represented him, the O’Malley defendants obtained a copy of the settlement hearing transcript and improperly discussed his case ex parte with an employment attorney, a workers compensation judge, and the employer’s lawyer. He raised claims of invasion of privacy under state, law,2 breach of contract, legal malpractice, and violation of his state and federal constitutional rights.
The defendants filed a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, to which Donnelly responded. By order entered on October 2, 2009, the District Court granted the O’Malley defendants’ motion and dismissed the Amended Complaint. The District Court dismissed Donnelly’s breach of contract/legal malpractice claim, holding that he failed to submit a certificate of merit (“COM”), which is required under Rule 1042.3(a) of the Pennsylvania Rules of Civil Procedure absent a'reasonable explanation or legitimate excuse. See Womer v. Hilliker, 589 Pa. 256, 908 A.2d 269, 278-79 (2006). The court determined that Donnelly provided no reasonable explanation for failing to file a COM, and his promise to produce a legal expert in the future did not comply with the rule.
Next, the District Court held that Don-nelly failed to state an invasion of privacy claim under Pennsylvania law. See Vogel v. W.T. Grant Co., 458 Pa. 124, 827 A.2d 133, 135-36 (1974) (adopting Sections 652B through 652E of the Restatement (Second) of Torts). The District Court rejected as meritless Donnelly’s claim that the O’Malley defendants invaded his privacy by obtaining information about him from the Department of Labor & Industry, which was needed in order to repre*349sent him in workers compensation proceedings, and by procuring the transcript of the workers compensation hearing, a .matter of public record. As for his claim of ex parte communications between the O’Malley defendants (whose services had been terminated) and an employment attorney, a workers compensation judge, and the employer’s lawyer, the District Court held that Donnelly’s “naked assertions” were insufficient to show that any private facts had been disseminated to the public or that he was placed in a false light as a result of such communications.
Treating Donnelly’s federal constitutional claim as one brought pursuant to 42 U.S.C. § 1983, the District Court held that he failed to show that the O’Malley defendants, private attorneys practicing in a private law firm, acted “under color of state law.” See Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) (a private party is a “state actor” for § 1983 purposes only where “he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State”). The District Court likewise dismissed Donnelly’s state constitutional claim as a matter of law against the O’Malley defendants, noting that the provisions of Article 1, § 1 of the Pennsylvania Constitution “govern only the actions of the state government.” See Dillon v. Homeowner’s Select, 957 A.2d 772, 776 (Pa.Super.Ct.2008). Donnelly filed this timely appeal.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District Court’s dismissal for failure to state a claim upon which relief may be granted is plenary. Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir.1999). In order to survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” See Ashcroft v. Iqbal, — U.S.—,—, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Well-pleaded factual content is accepted as true for purposes of determining whether the complaint states a plausible claim for relief. Id. at 1950. The assumption of truth does not apply, however, to legal conclusions couched as factual allegations or to “[tjhreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. at 1949. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
We conclude that the District Court applied the appropriate standard for dismissal pursuant to Rule 12(b)(6) and properly dismissed Donnelly’s Amended Complaint for the reasons stated in its Opinion. Donnelly argues on appeal that no COM was required for his breach of contract and legal malpractice claims against the O’Malley defendants because these claims do not call for expert testimony to explain their lapses in judgment or failures in performance. He asserts that his allegations are easy for an ordinary person to understand. For instance, he asserts that the O’Malley defendants gave him employment advice, which is outside their realm of expertise. (Informal Br. at 5.) Regardless of how he chooses to characterize his claim, however, Donnelly’s allegations pertain to the quality of the O’Malley defendants’ professional representation of him, and thus a COM is required. See Gorski v. Smith, 812 A.2d 683, 694 (Pa.Super.Ct.2002) (stating that in *350cases where there is an attorney/client agreement for legal services, “there automatically arises a contractual duty on the part of the attorney to render those legal services in a manner that comports with the profession at large”); Pa. R. Civ. P. 1042.3 (a COM is required in “any action” against an attorney that calls into question whether counsel “deviated from an acceptable professional standard”). Involuntary dismissal under Rule 1042.3 is not a dismissal with prejudice, however. See Moore v. John A. Luchsinger, P.C., 862 A.2d 631, 634 n. 3 (Pa.Super.Ct.2004). Hence, we will affirm the District Court’s order dismissing this claim as modified to be a dismissal without prejudice.
We have thoroughly reviewed the remainder of Donnelly’s arguments on appeal and we conclude that they are merit-less.3
Accordingly, we will affirm the judgment of the District Court, modified as a dismissal without prejudice as to the legal malpractice claim. The appellees’ motion to dismiss/quash the appeal is denied.
. Apparently, Donnelly moved from the homeless shelter where he had been residing around the time his settlement check was due. Donnelly also complains that the O'Malley defendants sent, the check to him by certified mail instead of by regular first class mail.
. To the extent that Donnelly claimed that his privacy was invaded under the Freedom of Information Act (“FOIA"), 5 U.S.C. § 552, we agree with the District Court that the FOIA applies only to the release of government records by the federal government, and, thus, Donnelly’s claim fails as a matter of law. Donnelly also has no meritorious claim under the Privacy Act, 5 U.S.C. § 552a, which protects individuals from the misuse of identifying information contained in computer information systems that are maintained by federal agencies. See Thomas v. United States Dep’t of Energy, 719 F.2d 342, 345 (10th Cir.1983).
. We see no need to remand the matter for amendment of .the Complaint regarding Don-nelly's privacy and § 1983 claims because amendment would be futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Here, no additional allegations would cure the defects in the Complaint regarding the state action requirement under § 1983. Moreover, Donnelly relies on pure conjecture on appeal (see Informal Br. at 12 & 23-24), and there is nothing in this record indicating that he could have amended his Complaint to state a viable invasion of privacy claim. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478630/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Henry Earl Miller, a federal prisoner, appeals the district court’s order denying various motions that Miller filed following the denial of rehef on his 28 U.S.C. § 2241 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Miller v. United States, No. 6:09-ev-01150-HFF (D.S.C. filed Dec. 29, 2009; entered Dec. 30, 2009). We deny as unnecessary Miller’s motion for a certificate of appealability and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478632/ | Petitions denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Henry Earl Miller petitions for writs of mandamus, alleging the district court has unduly delayed ruling on his motions for written orders setting forth his offense conduct which resulted in his convictions. He seeks an order from this court directing the district court to act. Our review of the docket sheet reveals that the district court denied these motions in a text order on December 29, 2009. Accordingly, because the district court has recently decided Miller’s motions, we deny the mandamus petitions 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.
PETITIONS DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478634/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Henry Earl Miller petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his “motion to amend the unwarned recharacterized 3-page unlabeled letter.” He seeks an order from this court directing the district court to act. Our review of the district court docket sheets reveals that the district court denied the motions in text orders on December 29, 2009. Accordingly, because the district court has recently decided Miller’s motions, 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/8478638/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Metasebya Kassa Mekonen, a native and citizen of Ethiopia, petitions for review of an order of the Board of Immigration Appeals (Board) denying her motion to reconsider. We have reviewed the administrative record and find no abuse of discretion in the denial of relief on Mekonen’s motion. See 8 C.F.R. § 1003.2(a) (2009). We accordingly deny the petition for review for the reasons stated by the Board. See In re: Mekonen (B.I.A. June 12, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478641/ | *384Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Paul Lewis appeals the district court’s order denying relief in his employment discrimination action. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Lewis v. HP/EDS, (Hewlett-Packard) Elec. Data Sys., No. 2:08-cv-00628-RAJ-JEB (E.D.Va. May 29, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478645/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Johnny D. Richardson appeals the district court’s order granting the Appellee’s motion to dismiss Richardson’s complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Richardson v. Geren, No. 1:08-cv-03121-CCB (D.Md. May 8, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478647/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Xiaoping Yao appeals the district court’s order granting summary judgment in favor of his former employer, Visa Inc., and dismissing his claim pursuant to 42 U.S.C. §§ 2000e-2000e-17 (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Yao v. Visa Inc., No. l:08-cv-01181-LO-TCB, 2009 WL 3734178 (E.D.Va. Nov. 6, 2009) We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478649/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Simon Banks seeks to appeal the district court’s order denying his motion for ECF Authority Through Pacer. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain inter*400locutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Banks seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478651/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Melvin Eugene Gibbs appeals the district court’s order summarily dismissing his complaint and denying his motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Gibbs v. United States, No. 8:09-cv-01779-PJM (D. Md. July 21 & Aug. 19, 2009). We deny Gibbs’ motions to transfer venue and for oral argument. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478746/ | OPINION
PER CURIAM.
Swie Lan Ong and her husband, Roby Irawan (collectively, “petitioners”), seek review of a final order of removal entered by the Board of Immigration Appeals (“BIA”). For the reasons that follow, we will deny the petition for review.
I.
Petitioners are natives and citizens of Indonesia of Chinese ethnicity. Ong, the lead petitioner, is a Catholic; Irawan is a Protestant. Petitioners arrived in the United States separately in 2003 on non-immigrant visas and overstayed. They conceded removability before the Immi*326gration Judge (“IJ”), and sought asylum, withholding of removal, protection under the Convention Against Torture (“CAT”), and, alternatively, voluntary departure. Ong claims that she suffered persecution in the form of frequent unwanted touching and verbal abuse in public due to her ethnicity. The worst incident, according to Ong, occurred on a public bus, when native Indonesians who had just left a football match boarded the bus and groped Ong and another woman of Chinese ethnicity. Irawan claims that he suffered persecution on one occasion when he was physically and verbally abused by native Indonesians after being involved in a motorbike collision.
The IJ denied asylum and withholding of removal, concluding that the harm suffered by petitioners does not rise to the level of past persecution, and that petitioners failed to show that they will be persecuted in the future if returned to Indonesia. The IJ also denied CAT relief, but granted voluntary departure.
On appeal to the BIA, petitioners challenged the denial of withholding of removal, conceding in their brief to the BIA that “they are only eligible for relief under withholding of removal.” A.R. at 181. On December 17, 2008, the BIA dismissed the appeal. The BIA noted that petitioners appealed as to withholding only, and it concluded that, while Ong’s reported sexual harassment is “reprehensible,” petitioners failed to show that they were persecuted in the absence of any showing of a threat to their life or freedom. Like the IJ, the BIA entered a voluntary departure order.
Petitioners timely filed a petition for review in this Court from the BIA’s December 17, 2008, decision. They also filed a motion with the BIA to reopen and reconsider the asylum and withholding of removal claims, arguing that the BIA erred in failing to find past persecution, that country conditions have deteriorated, and that they have evidence to show a pattern or practice of persecution against ethnic Chinese Christians in Indonesia.1 The BIA denied the motion to reopen and reconsider on June 29, 2009.2 Petitioners have not filed a petition for review from this latter BIA decision.
II.
We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review the BIA’s December 17, 2008, final order of removal. However, as respondent correctly notes, this Court lacks jurisdiction to review the subsequent decision denying the motion to reopen and reconsider because petitioners did not file a petition for review from that decision. See Stone v. INS, 514 U.S. 386, 401, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995). Petitioners suggest that this Court should review the motion to reopen and reconsider because, they contend, their actual removal from the United States “mooted” the motion, and thus they should be permitted to raise arguments from that motion to this Court in the first instance. Opening Br. at 2. We reject this attempt to manufacture jurisdiction over the motion to reopen and reconsider.
When an alien seeks to introduce new evidence after entry of a final order of *327removal, the proper course, which petitioners at least initially followed here, “is to file a motion to reopen with the BIA on account of new evidence.” Al-Fara v. Gonzales, 404 F.3d 733, 743 (3d Cir.2005). If petitioners wanted to obtain judicial review of the decision denying that motion, the next step in the process was to file a petition for review in this Court. See id. Because they did not file a petition for review, we do not have jurisdiction to review the motion to reopen and reconsider. See Camara v. Att’y Gen., 580 F.3d 196, 201 n. 10 (3d Cir.2009).3
There is another jurisdictional issue to consider. Petitioners seek review in this Court of the denial of both their asylum and withholding of removal claims.4 Respondent argues that this Court lacks jurisdiction to review the asylum claims because petitioners failed to exhaust administrative remedies. We agree. The record reflects that petitioners abandoned all but their withholding of removal claims on administrative appeal inasmuch as they expressly conceded in their brief to the BIA that “they are only eligible for relief under withholding of removal.” A.R. at 181. Consequently, because they did not exhaust review in the BIA before seeking judicial review, we lack jurisdiction over the asylum claims. See 8 U.S.C. § 1252(d)(1); Lin v. Att’y Gen., 543 F.3d 114, 120 (3d Cir.2008); Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir.2005).5
We turn to the merits of petitioners’ withholding of removal claims. We review the BIA’s denial of withholding of removal, which was based on its finding of an absence of past persecution, for substantial evidence, and as such we ask only whether the BIA’s finding is “ ‘supported by reasonable, substantial, and probative evidence on the record considered as a *328whole.’ ” Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir.2005) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)); Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). “[W]e may decline to uphold the BIA’s findings only if the evidence compels a contrary conclusion.” Ahmed v. Ashcroft, 341 F.3d 214, 216 (3d Cir.2003).
To qualify for withholding, petitioners had to show that it is more likely than not that they will face persecution if returned to Indonesia. See INS v. Cardoza-Fonseca, 480 U.S. 421, 430, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). A successful showing of past persecution would entitle petitioners to a rebuttable presumption of future persecution. See 8 C.F.R. § 208.16(b)(1)(i).
Our review of the record reveals no error in the BIA’s analysis. Ong’s claim for withholding is based on a history of unwanted touching and verbal abuse, and she relies in particular upon an incident on a public bus when she was groped because of her ethnicity. The BIA no doubt was correct to label the treatment that Ong experienced “reprehensible,” but it does not rise to the level of persecution. See, e.g., Jarbough v. Att’y Gen., 483 F.3d 184, 191 (3d Cir.2007) (observing that “[a]busive treatment and harassment, while always deplorable, may not rise to the level of persecution”); Fatin v. INS, 12 F.3d 1233, 1243 (3d Cir.1993) (explaining that persecution “is an extreme concept that does not include every sort of treatment our society regards as offensive”). The record simply does not compel the conclusion that Ong’s experiences were so severe as to constitute persecution. The same is clearly the case with respect to Irawan, as well.6
Petitioners contend that the BIA erred by failing to account for the mental suffering that Ong experienced, and they argue that because Ong claims to have suffered harassment “daily,” her cumulative experiences amount to persecution. Opening Br. at 15-16. The BIA was correct, however, that the hallmarks of persecution are “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.” Fatin, 12 F.3d at 1240. Ong’s experiences do not compel a conclusion that she faced such a threat to life or freedom. See id. (explaining that persecution does not include “all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional”).
Finally, petitioners argue that they are entitled to withholding of removal because they can show a “pattern or practice” of discrimination against ethnic Chinese Christians in Indonesia.7 However, petitioners seeks to establish this claim based solely upon the evidence that they submitted in support of their motion to reopen and reconsider. See note 1, supra. As we have explained, see note 3, supra, petitioners cannot rely upon evidence outside of the administrative record to make their arguments in this Court. Because their pattern or practice argument relies entirely upon evidence that is not before this Court, see Opening Brief at 17-24, Reply *329Br. at 5-8, that argument is not properly considered on this petition for review.
III.
For the foregoing reasons, we will deny the petition for review.
. Petitioners attached three documents as "new” or "additional” evidence to support the motion to reopen: (1) "Consolidated Report of the Republic of Indonesia on the Implementation of the International Convention on the Elimination of all Forms of Racial Discrimination”; (2) an "Alternative Report on ICERD” prepared by Indonesia NGOs; and (3) selections from a transcript of testimony by Dr. Jeffrey Winters dated April 28, 2008, given in a different immigration matter.
. Although not reflected in the record before this Court, respondent notes (and petitioners do not dispute) that the BIA denied the motion to reopen and reconsider.
. Petitioners also suggest that the arguments raised in their motion to reopen and reconsider can be considered by this Court because their motion "is part of the current Administrative Record.” Opening Br. at 2. This Court, however, "shall decide the petition [for review] only on the administrative record on which the order of removal is based." 8 U.S.C. § 1252(b)(4)(A) (emphasis added). Petitioners' motion to reopen and reconsider was not part of the record considered by the BIA in issuing the order of removal. Thus, while that motion is physically part of the current administrative record, it is not properly considered on this petition for review.
. Petitioners do not seek review of their CAT claims.
. Petitioners concede that they did not assert the asylum claims in their brief to the BIA, but they argue that they exhausted administrative remedies by referencing those claims in their notice of appeal to the BIA. Opening Br. at 5; Reply Br. at 2-4. We have held that “our case law does not foreclose judicial review of an issue that was sufficiently raised in a notice of appeal to the BIA, but never argued in the brief subsequently submitted to the agency.” Hoxha v. Holder, 559 F.3d 157, 161 (3d Cir.2009); see also Bhiski v. Ashcroft, 373 F.3d 363, 367-68 (3d Cir.2004) (”[I]f the issue is not complex, no brief is required as long as the notice of appeal does precisely what it is intended to do — place the BIA on notice of what is at issue.”). Hoxha and Bhiski, however, are of no help to petitioners. Even assuming that petitioners adequately advised the BIA through their notice of appeal that they wished to raise the asylum claims, they subsequently filed a brief with the BIA, and in that brief, their counsel expressly conceded that withholding of removal provided the only potential avenue for relief. The BIA apparently took note of petitioners' concession, as it found that they "only appealed the issue of withholding of removal," and thus limited its analysis to that issue. A.R. at 174. Unlike Hoxha, therefore, this is not a case where petitioner presented an issue in the notice of appeal but simply failed to argue that issue at the briefing stage; rather, petitioners here effectively told the BIA at the briefing stage not to review claims other than withholding of removal. On these facts, we agree with respondent that petitioners failed to exhaust the asylum claims, and thus this Court lacks jurisdiction over those claims.
. While the BIA did misstate the record when it suggested that Irawan did not testify at the hearing before the IJ, see A.R. at 174 n. 1, petitioners have not shown that this oversight affected the BIA's analysis or resulted in any prejudice to petitioners. Indeed, petitioners’ arguments focus almost exclusively upon Ong’s claim.
. Respondent argues that the pattern or practice claim is unexhausted, but we disagree. Petitioners argued withholding of removal in their brief to the BIA, including a pattern or practice argument. See A.R. at 184-85. They also set forth a pattern or practice argument in their notice of appeal to the BIA. Id. at 229. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478749/ | OPINION
PER CURIAM.
On April 27, 2005, petitioner Weng Zhen Shou, a native and citizen of the People’s Republic of China, was served with a notice to appear charging him with remova-bility under 8 U.S.C. § 1182(a)(7)(A)(i)(I). Weng1 conceded removability as charged, but applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”), on the ground that he had suffered past persecution and feared future persecution by the PRC as a practitioner of Catholicism. Specifically, Weng alleged that in 2004, at the urging of his friend and to alleviate his depression, he joined the Catholic Church. According to Weng, the police discovered his church attendance and came to his house and threatened his parents. Weng testified that, fearing future persecution, he went to live with his aunt and then fled to the United States.
On April 30, 2007, an Immigration Judge (“IJ”) rendered an oral decision and order denying Weng’s various petitions for relief. Specifically, the IJ found Weng incredible with regard to his claims of police threats and, further concluded that he failed to satisfy his burden of proof by providing the necessary evidence of corroboration of the specifics of his claim. The IJ also found that Weng did not prove future persecution based on his Catholicism. On appeal, the Board of Immigration Appeals (“BIA”) affirmed the IJ’s decision. Weng then filed a timely petition for review in this Court.
We have jurisdiction over Weng’s petition pursuant to 8 U.S.C. § 1252(a). We uphold the BIA’s determinations if they are supported by reasonable, substantial and probative evidence on the record considered as a whole. Yusupov v. Att’y Gen., 518 F.3d 185, 197 (3d Cir.2008). When the BIA substantially relies on the IJ’s adverse credibility determination, we have jurisdiction to review both opinions. Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004).
To be granted asylum, Weng needed to show that he is “unable or unwilling to return to [China] ... because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); see also 8 U.S.C. § 1158(b)(1)(A). To be eligible for withholding of removal, Weng was required to demonstrate that “there is a greater-than-fifty-percent chance of persecution” in China based on one of these protected grounds. Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir.1998); see also 8 U.S.C. § 1231(b)(3)(C). For relief under the CAT, Weng must demonstrate that it is more likely than not that he would be tortured if removed to China. See 8 C.F.R. § 208.16(c)(2).
The BIA’s finding that Weng’s testimony was not credible is supported by substantial evidence.2 See Sukwanputra *331v. Gonzales, 434 F.3d 627, 636 (3d Cir.2006) (holding that an adverse credibility determination is appropriately based on inconsistent statements and contradictory evidence). According to the IJ and BIA, there were inconsistencies among Weng’s testimony, his credible fear interview and supporting letters he submitted from his parents. Specifically, the BIA found discrepancies in his descriptions of encounters with the police: in his credible fear application, Weng stated that the police tried to arrest him on his way to church; however, in his testimony, he stated that police came to his house to arrest him while he was away and he learned of the incident from his parents.
Weng argues that an inconsistency between his credible fear interview and his testimony is not sufficient to uphold the IJ’s credibility assessment. We have held that inconsistencies between an airport statement and an asylum seeker’s testimony before an IJ are not sufficient, standing alone, to support a BIA finding that petitioner was not credible. See Chukwu, 484 F.3d at 191. In this case, however, the IJ made a distinction between an airport statement (which the IJ did not consider) and the later credible fear interview. The record reveals that the credible fear interview was a detailed question and answer session which occurred at the detention center with an interpreter present and took place several days after Weng arrived in the United States.3 (A.R. 151-52) Therefore, most of the concerns we have had about rebanee on an airport statement were not present. See Fiadjoe v. Att’y Gen., 411 F.3d 135, 159 (3d Cir.2005) (“Such an interview is likely to be hurried; language difficulties arise; the results may be inaccurately recorded, and an arriving alien who has suffered abuse in his home country may be reluctant to reveal full information in his or her first meeting with the government.”).
Credibility aside, an asylum applicant may be required to supply corroborating evidence in order to meet his burden of proof. See Chen v. Gonzales, 434 F.3d 212, 218 (3d Cir.2005). Here, as the IJ noted, Weng failed to provide any corroborating evidence except for letters from his parents which were inconsistent with parts of his testimony. Specifically, the parents’ letters stated that Weng got involved with Catholicism because he was depressed and having trouble at a computer school, whereas Weng testified that he was a good student at a “regular” school. In sum, Weng has not demonstrated that the BIA’s adverse credibility determination was erroneous.
Because Weng did not satisfy the standard for asylum, he cannot satisfy the higher burden of proof for withholding of removal. Janusiak v. INS, 947 F.2d 46, 47 (3d Cir.1991).
Weng supports his CAT claim by citing evidence that Falun Gong practitioners are tortured in China. (Petr.’s Br. at 13.) Weng, however, has not pointed to any evidence in the record which shows that it is more likely than not that he would be tortured in China because of his practice of Catholicism. Indeed, as the BIA noted, Catholicism is a recognized religion in China and its practice, though restricted, is permitted. Therefore, we find that the BIA’s decision denying Weng’s CAT claim is also supported by substantial evidence.
*332For the foregoing reasons, we deny Weng’s petition for review.
. Petitioner's surname is "Weng” and he has been referred to as such throughout the course of these removal proceedings. (See, e.g., A.R. 136.) For the sake of consistency and accuracy, we will refer to petitioner as Weng throughout this opinion.
. Because Weng filed his asylum application after the enactment of the REAL ID Act, the IJ’s credibility determination was made without regard to whether an inconsistency, inaccuracy, or falsehood went to the heart of Weng’s claim. See Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir.2007). We have not considered whether the REAL ID Act's provision is consistent with principles of due process. We need not do so here, however, because the IJ’s adverse credibility determination rested on inconsistencies that were *331central to Weng’s claim of persecution. See Wang v. Holder, 569 F.3d 531, 538 (5th Cir.2009) (canvassing the provision).
. The interviewer also informed Weng that he had the right to have a "consultant" present. Weng declined the offer. (A.R. at 151.) | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478752/ | OPINION
PER CURIAM.
Sambo Chum petitions for review of the Board of Immigration Appeals’ (“BIA”) final order of removal. The Government has moved to dismiss the petition for lack of jurisdiction. For the reasons that follow, we will deny the Government’s motion and Chum’s petition for review.
I.
Because the background of this case is familiar to the parties, we discuss it only briefly here. Chum, a native of Thailand and citizen of Cambodia,1 entered the United States as a refugee in 1985 and became a lawful permanent resident in 1989. In 2007, he pleaded guilty in Rhode Island state court to possession of a sawed-off shotgun and possession with intent to deliver marijuana. The court sentenced him to ten years’ imprisonment, with all but eighteen months of the sentence suspended. Chum was released from prison after serving fifteen months. Shortly after his release, he was placed in removal proceedings.
In October 2008, Chum applied for cancellation of removal under 8 U.S.C. § 1229b(a).2 After a hearing on the merits, the Immigration Judge (“IJ”) granted Chum’s application. The IJ recognized *336that Chum had been a member of a gang, had dropped out of high school, and had both an adult and juvenile criminal record. Nonetheless, the IJ concluded that the positive equities “slightly offset” these negative factors. (Decision of IJ at 4.) The IJ stated that “[w]hile there is no evidence of rehabilitation in this matter, there is evidence of rehabilitative potential, including earning his GED, having no problems while incarcerated, completing anger management and other prison rehabilitative-type courses, having no intention of returning to his gang, and pursuing a trade in the culinary arts.” (Id. at 3.) The IJ also emphasized the circumstances surrounding Chum’s entry into the United States, noting that Chum “knows nothing of Cambodia and has no relatives he knows of residing there.” (Id.)
The Government appealed the IJ’s ruling to the BIA, arguing that (1) Chum’s drug conviction rendered him ineligible for cancellation of removal and (2) even if Chum was eligible, the IJ erred in granting the application. The BIA ruled on the second argument only, holding that the IJ erred in granting Chum’s application.3 The BIA concluded that Chum’s positive equities were insufficient to overcome the negative equities. Chum now petitions for review of the BIA’s decision, and the Government has moved to dismiss the petition for lack of jurisdiction.
II.
“This Court generally lacks jurisdiction to review discretionary decisions made under § 1229b regarding cancellation of removal.” Mendez-Reyes v. Att’y Gen. of the U.S., 428 F.3d 187, 189 (3d Cir.2005) (citing 8 U.S.C. § 1252(a)(2)(B)(i)). Additionally, we generally lack jurisdiction to review final orders of removal entered against aliens convicted of certain drug offenses. See 8 U.S.C. § 1252(a)(2)(C). We retain jurisdiction, however, over constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(D).
In moving to dismiss, the Government contends that Chum’s petition challenges merely the BIA’s discretionary balancing of the equities. We disagree. Chum claims that the BIA applied the wrong standard of review and misapplied the balancing test governing cancellation of removal applications. Because these claims fall within the ambit of our jurisdiction under § 1252(a)(2)(D), the Government’s motion is denied.
III.
Although we have jurisdiction to consider Chum’s petition, he has not shown that the BIA erred as a matter of law. Chum first claims that the BIA “applied the wrong standard of review because it failed to defer to the [IJ’s] factual findings and reversed the [IJ’s] decision without finding any of his findings clearly erroneous.” (Chum’s Opening Brief at 2.) Nothing in the BIA’s decision, however, indicates that the BIA questioned the IJ’s factual findings, let alone failed to defer to them. The BIA simply disagreed with the IJ’s balancing of these findings.4 Because the BIA reviews that aspect of the IJ’s decision de novo, see 8 C.F.R. § 1003.1(d)(3)(h), the BIA did not need to deem the IJ’s factual findings clearly erroneous to overturn the IJ’s grant of cancellation of removal. Accordingly, the BIA *337did not apply the wrong standard of review.
Chum’s other claim is that the BIA ignored his “principal positive equities and ameliorating aspects of his negative equities,” (Chum’s Opening Brief at 23), thereby preventing it from properly applying the test for balancing the equities. Although we recognize that the BIA’s decision discussed the negative aspects of Chum’s case at greater length than the positive aspects, the BIA did consider both. Indeed, the BIA’s decision mentioned Chum’s rehabilitative potential, his “long time physical presence and family ties in the United States,” and the circumstances that brought him to this country. (BIA Decision at 2.) The BIA simply concluded that these positive equities did not outweigh Chum’s “criminal activities, gang affiliation, and the circumstances surrounding his 2007 conviction involving both drugs and weapons.” (Id.) Morever, Chum has not persuaded us that the absence in the BIA’s decision of any alleged “ameliorating aspects” of his negative equities, such as the fact that he left the sawed-off shotgun in the trunk of his car during the drug deal that led to his arrest, reflects anything more than the BIA’s discretionary decision to afford this evidence little or no weight.
In light of the above, we will deny Chum’s petition for review.
. Chum was born in a Cambodian refugee camp in Thailand.
. Section 1229b(a) provides that the Attorney General may cancel the removal of an alien who "(1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony." 8 U.S.C. § 1229b(a). If an alien meets these three requirements, the IJ, "upon review of the record as a whole, ‘must balance the adverse factors evidencing the alien's undesirability as a permanent resident with the social and humane considerations presented in his [or her] behalf to determine whether the granting of ... relief appears in the best interest of this country.' " In re C-V-T-, 22 I. & N. Dec. 7, 11 (BIA 1998) (quoting Matter of Marin, 16 I. & N. Dec. 581, 584 (BIA 1978)).
. The BIA noted, without deciding, that “we are not convinced that [Chum] has established his burden in demonstrating eligibility for [cancellation of removal].” (Decision of BIA at 2.)
. As the Government explains, we lack jurisdiction to review that discretionary aspect of the BIA's decision. See 8 U.S.C. § 1252(a)(2)(B)(i). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478758/ | OPINION
PER CURIAM.
Sang Goo Park, lead respondent, and his wife and son, petition for review of a decision of the Board of Immigration Appeals. For the reasons below, we will deny the petition for review.
Park and his family entered the United States on 1999 on nonimmigrant visas. In June 2000, their visas were revoked. In 2003, Park applied to adjust his status to that of a permanent resident. In March 2006, the application was denied because Park had submitted fraudulent documents in support of his visa application. In July 2006, Park was charged as removable for overstaying his admission period and for submitting fraudulent documents to obtain a visa. Park admitted that he overstayed his admission period but denied the fraud charge. The IJ sustained the fraud charge and ordered Park removed to South Korea.1 The BIA adopted the IJ’s decision and dismissed the appeal. Park filed a timely petition for review and is proceeding pro se.
We have jurisdiction pursuant to 8 U.S.C. § 1252. The BIA adopted the IJ’s decision and added its own reasoning. Thus, we review the decisions of both the IJ and the BIA. Jarbough v. Att’y Gen., 483 F.3d 184, 191 (3d Cir.2007). We review the BIA’s factual determinations under the substantial evidence standard. Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.2003)(en banc). The BIA’s findings are considered conclusive unless “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We exercise de novo review over the BIA’s legal decisions. Tous-saint v. Att’y Gen., 455 F.3d 409, 413 (3d Cir.2006).
At the hearing, Park testified that he got the visa through a travel agency be*345cause the line at the Embassy was too long. A.R. at 71. He admitted that he was never employed at Daelin Electronics, the employer listed on his visa application. A.R. at 74, 76-77. He asserted that he was not aware that the information in his visa application was false. A.R. at 74-75. He stated that he did not look at the visa very carefully after receiving it from the travel agent and had no suspicions that the travel agency was not legitimate. A.R. at 78-80. While he first admitted that he signed forms for the visa, A.R. at 68, he later stated that he did not sign the visa application. A.R. at 75.2
The IJ rejected Park’s argument that he relied on the travel agent who filled out the visa form and did not read it. The IJ noted that Park was an educated man and the form was only two pages long. The IJ pointed out Park’s inconsistent testimony as to whether he signed the visa application. The BIA noted that the application was in both Korean and English. It observed that the application listed a different employer and type of employment than Park had in Korea and that this information was not a technical legal issue that Park would be unlikely to know. A.R. at 3.
Park argues that he was unaware that there was false information on his visa application. However, his testimony is not sufficient to compel a reasonable adjudicator to conclude that the BIA was wrong in finding the fraud to be willful. This finding is supported by the evidence described above.3
Park also contends that the BIA and IJ failed to act on his application for adjustment of status. An alien must be admissible in order to adjust his status. 8 U.S.C. § 1255(a). Because Park willfully misrepresented a material fact in seeking admission into the United States, he is inadmissible and cannot adjust his status. 8 U.S.C. § 1182(a)(6)(C).4
For the above reasons, we will deny the petition for review.
. Kim Hee and Joo Park were found removable for overstaying their admission period.
. Before the BIA, Park argued that he signed a blank application.
. Park also argues that the BIA erred in finding that his wife and son committed fraud. The BIA, however, noted that Park’s wife and son were found removable for overstaying their admission period.
.At the hearing Park’s attorney agreed with the IJ that if the fraud charge was sustained, Park would not be able to pursue adjustment of status based on an approved labor certification. A.R. at 65-67. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478639/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Metasebya Kassa Mekonen, a native and citizen of Ethiopia, petitions for review of an order of the Board of Immigration Appeals (Board) denying her motion to reconsider. We have reviewed the administrative record and find no abuse of discretion in the denial of relief on Mekonen’s motion. See 8 C.F.R. § 1003.2(a) (2009). We accordingly deny the petition for review for the reasons stated by the Board. See In re: Mekonen (B.I.A. June 12, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478640/ | *384Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Paul Lewis appeals the district court’s order denying relief in his employment discrimination action. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Lewis v. HP/EDS, (Hewlett-Packard) Elec. Data Sys., No. 2:08-cv-00628-RAJ-JEB (E.D.Va. May 29, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478643/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Boris Shulman appeals the district court’s order accepting the magistrate judge’s recommendation to grant Defendant’s motion for summary judgment on his retaliation and race and national origin discrimination claims, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s order. See Shulman v. Blue Cross & Blue Shield of S.C., No. 3:07-cv-02967-CMC, 2009 WL 2929534 (D.S.C. Sept. 2, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478644/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Johnny D. Richardson appeals the district court’s order granting the Appellee’s motion to dismiss Richardson’s complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Richardson v. Geren, No. 1:08-cv-03121-CCB (D.Md. May 8, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478646/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Xiaoping Yao appeals the district court’s order granting summary judgment in favor of his former employer, Visa Inc., and dismissing his claim pursuant to 42 U.S.C. §§ 2000e-2000e-17 (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Yao v. Visa Inc., No. l:08-cv-01181-LO-TCB, 2009 WL 3734178 (E.D.Va. Nov. 6, 2009) We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478648/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Simon Banks seeks to appeal the district court’s order denying his motion for ECF Authority Through Pacer. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain inter*400locutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Banks seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478650/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Melvin Eugene Gibbs appeals the district court’s order summarily dismissing his complaint and denying his motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Gibbs v. United States, No. 8:09-cv-01779-PJM (D. Md. July 21 & Aug. 19, 2009). We deny Gibbs’ motions to transfer venue and for oral argument. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478751/ | *333OPINION
PER CURIAM.
Mohammad Zarin petitions for review of a decision of the Board of Immigration Appeals (BIA). For the reasons below, we will deny the petition for review.
Zarin entered the United States in February 2001 as a visitor. In March 2003, he was charged as removable for overstaying his admission period. He conceded removability and applied for withholding of removal and relief under the Convention Against Torture (CAT) based on his membership in the Pakistani Muslim League. He also requested voluntary departure. After a hearing, the IJ found Zarin not credible. On that basis, the IJ denied Zarin’s applications for withholding of removal and CAT relief. The IJ also denied Zarin’s application for voluntary departure and found that Zarin had filed a frivolous asylum application. On appeal, the BIA affirmed the denial of relief but reversed the finding of frivolousness. It remanded the matter to the IJ to consider Zarin’s application for voluntary departure because the IJ had not explained his reasoning for denying the application. On remand, the IJ granted Zarin voluntary departure.1 The BIA then reaffirmed its denial of relief, and Zarin fried a timely petition for review.
We have jurisdiction pursuant to 8 U.S.C. § 1252. To establish eligibility for withholding of removal, Zarin needed to demonstrate that it was more likely than not that his life would be threatened in Pakistan on account of race, religion, nationality, membership in a particular social group, or political opinion. Tarruwally v. Ashcroft, 338 F.3d 180, 186 (3d Cir.2003); 8 U.S.C. § 1231(b)(3)(A). To be eligible for withholding of removal under the Convention Against Torture, Zarin needed to demonstrate that it is more likely than not that he would be tortured if removed to Pakistan. 8 C.F.R. § 208.16(c)(2). We must uphold the adverse credibility finding unless any reasonable adjudicator would be compelled to conclude to the contrary. Fiadjoe v. Attorney General, 411 F.3d 135, 153 (3d Cir.2005).
The IJ based the adverse credibility finding on several inconsistencies in Zarin’s evidence. In his brief, Zarin argues only that he had trouble remembering dates and was nervous after being badgered by the IJ. He does not address or challenge any of the IJ’s specific findings. Several of the inconsistencies mentioned by the IJ were not based on dates. The IJ noted the discrepancies between Zarin’s testimony and his affidavit regarding whether and when he went to Karachi for medical treatment after allegedly being detained and beaten by the police. The IJ also pointed out that Zarin testified that the police made him sign a paper saying that he would give up his political activities in order to be released. However, there was nothing in his affidavit about being forced to sign any papers. The IJ also noted the inconsistency between Zarin’s testimony and his affidavit regarding whether he had to pay a bond to be released from detention. The IJ also relied on Zarin’s failure to mention his extended stays in Bahrain until asked by the government about them on cross-examination. We do not believe it was unfair for the IJ to question Zarin on the time he spent in Bahrain; the IJ believed that Zarin’s time in Bahrain undermined his testimony of being involved with the Muslim League. We cannot conclude that any reasonable adjudicator would be compelled to conclude that Zarin was credible. Thus, Zarin did not meet his burden of demonstrat*334ing eligibility for withholding of removal and protection under the CAT.
Zarin also challenges the IJ’s refusal to accept documents submitted as evidence on the day of the hearing. We agree with the parties that the IJ’s rejection of these documents should be reviewed for an abuse of discretion. See Tang v. Att’y Gen., 578 F.3d 1270, 1276 (11th Cir.2009); Dedji v. Mukasey, 525 F.3d 187, 191 (2d Cir.2008). Zarin describes the documents as a letter from the Union Council Hazara, a letter from the General Secretary of the Pakistani Muslim League, and an affidavit. He does not describe the content of the documents. At the hearing, Zarin asserted that the delay stemmed from his wife’s illiteracy and the lack of postal system in his village. The IJ rejected Zarin’s explanation for not submitting the documents within the time allowed. A.R. at 197. The IJ noted that the hearing had been scheduled eighteen months earlier and Zarin had plenty of time to prepare his case. The IJ did not abuse his discretion in rejecting the evidence. Moreover, Zarin has not explained how these documents would have altered the outcome of his hearing. He has not described the content of these documents or how they would undermine the IJ’s adverse credibility finding.
For the above reasons, we will deny the petition for review.
. A different IJ handled the matter on remand. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478753/ | OPINION
PER CURIAM.
Sambo Chum petitions for review of the Board of Immigration Appeals’ (“BIA”) final order of removal. The Government has moved to dismiss the petition for lack of jurisdiction. For the reasons that follow, we will deny the Government’s motion and Chum’s petition for review.
I.
Because the background of this case is familiar to the parties, we discuss it only briefly here. Chum, a native of Thailand and citizen of Cambodia,1 entered the United States as a refugee in 1985 and became a lawful permanent resident in 1989. In 2007, he pleaded guilty in Rhode Island state court to possession of a sawed-off shotgun and possession with intent to deliver marijuana. The court sentenced him to ten years’ imprisonment, with all but eighteen months of the sentence suspended. Chum was released from prison after serving fifteen months. Shortly after his release, he was placed in removal proceedings.
In October 2008, Chum applied for cancellation of removal under 8 U.S.C. § 1229b(a).2 After a hearing on the merits, the Immigration Judge (“IJ”) granted Chum’s application. The IJ recognized *336that Chum had been a member of a gang, had dropped out of high school, and had both an adult and juvenile criminal record. Nonetheless, the IJ concluded that the positive equities “slightly offset” these negative factors. (Decision of IJ at 4.) The IJ stated that “[w]hile there is no evidence of rehabilitation in this matter, there is evidence of rehabilitative potential, including earning his GED, having no problems while incarcerated, completing anger management and other prison rehabilitative-type courses, having no intention of returning to his gang, and pursuing a trade in the culinary arts.” (Id. at 3.) The IJ also emphasized the circumstances surrounding Chum’s entry into the United States, noting that Chum “knows nothing of Cambodia and has no relatives he knows of residing there.” (Id.)
The Government appealed the IJ’s ruling to the BIA, arguing that (1) Chum’s drug conviction rendered him ineligible for cancellation of removal and (2) even if Chum was eligible, the IJ erred in granting the application. The BIA ruled on the second argument only, holding that the IJ erred in granting Chum’s application.3 The BIA concluded that Chum’s positive equities were insufficient to overcome the negative equities. Chum now petitions for review of the BIA’s decision, and the Government has moved to dismiss the petition for lack of jurisdiction.
II.
“This Court generally lacks jurisdiction to review discretionary decisions made under § 1229b regarding cancellation of removal.” Mendez-Reyes v. Att’y Gen. of the U.S., 428 F.3d 187, 189 (3d Cir.2005) (citing 8 U.S.C. § 1252(a)(2)(B)(i)). Additionally, we generally lack jurisdiction to review final orders of removal entered against aliens convicted of certain drug offenses. See 8 U.S.C. § 1252(a)(2)(C). We retain jurisdiction, however, over constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(D).
In moving to dismiss, the Government contends that Chum’s petition challenges merely the BIA’s discretionary balancing of the equities. We disagree. Chum claims that the BIA applied the wrong standard of review and misapplied the balancing test governing cancellation of removal applications. Because these claims fall within the ambit of our jurisdiction under § 1252(a)(2)(D), the Government’s motion is denied.
III.
Although we have jurisdiction to consider Chum’s petition, he has not shown that the BIA erred as a matter of law. Chum first claims that the BIA “applied the wrong standard of review because it failed to defer to the [IJ’s] factual findings and reversed the [IJ’s] decision without finding any of his findings clearly erroneous.” (Chum’s Opening Brief at 2.) Nothing in the BIA’s decision, however, indicates that the BIA questioned the IJ’s factual findings, let alone failed to defer to them. The BIA simply disagreed with the IJ’s balancing of these findings.4 Because the BIA reviews that aspect of the IJ’s decision de novo, see 8 C.F.R. § 1003.1(d)(3)(h), the BIA did not need to deem the IJ’s factual findings clearly erroneous to overturn the IJ’s grant of cancellation of removal. Accordingly, the BIA *337did not apply the wrong standard of review.
Chum’s other claim is that the BIA ignored his “principal positive equities and ameliorating aspects of his negative equities,” (Chum’s Opening Brief at 23), thereby preventing it from properly applying the test for balancing the equities. Although we recognize that the BIA’s decision discussed the negative aspects of Chum’s case at greater length than the positive aspects, the BIA did consider both. Indeed, the BIA’s decision mentioned Chum’s rehabilitative potential, his “long time physical presence and family ties in the United States,” and the circumstances that brought him to this country. (BIA Decision at 2.) The BIA simply concluded that these positive equities did not outweigh Chum’s “criminal activities, gang affiliation, and the circumstances surrounding his 2007 conviction involving both drugs and weapons.” (Id.) Morever, Chum has not persuaded us that the absence in the BIA’s decision of any alleged “ameliorating aspects” of his negative equities, such as the fact that he left the sawed-off shotgun in the trunk of his car during the drug deal that led to his arrest, reflects anything more than the BIA’s discretionary decision to afford this evidence little or no weight.
In light of the above, we will deny Chum’s petition for review.
. Chum was born in a Cambodian refugee camp in Thailand.
. Section 1229b(a) provides that the Attorney General may cancel the removal of an alien who "(1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony." 8 U.S.C. § 1229b(a). If an alien meets these three requirements, the IJ, "upon review of the record as a whole, ‘must balance the adverse factors evidencing the alien's undesirability as a permanent resident with the social and humane considerations presented in his [or her] behalf to determine whether the granting of ... relief appears in the best interest of this country.' " In re C-V-T-, 22 I. & N. Dec. 7, 11 (BIA 1998) (quoting Matter of Marin, 16 I. & N. Dec. 581, 584 (BIA 1978)).
. The BIA noted, without deciding, that “we are not convinced that [Chum] has established his burden in demonstrating eligibility for [cancellation of removal].” (Decision of BIA at 2.)
. As the Government explains, we lack jurisdiction to review that discretionary aspect of the BIA's decision. See 8 U.S.C. § 1252(a)(2)(B)(i). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478755/ | OPINION
PER CURIAM.
Jovita Mateo-Ventura petitions for review of the Board of Immigration Appeals’ (“BIA”) final order of removal. We will dismiss her petition in part and deny it in part.
I.
Mateo (as she refers to herself) is a citizen of Mexico who entered the United States in 1993. In 2004, the Government charged her as removable for being present without having been admitted or paroled. Mateo concedes removability, but she applied for discretionary cancellation of removal under 8 U.S.C. § 1229b. She asserted that her removal would result in hardship for her two United States citizen children because her son Ivan suffers from cataracts and Attention Deficit Disorder, and because her children will either be deprived of her emotional support if they remain with family members in the United States or will receive inadequate education and financial support if they return with her to Mexico.
Following a hearing, the Immigration Judge (“IJ”) denied relief. The IJ expressed sympathy for Mateo’s situation, but concluded that she had not demonstrated that her removal would “result in exceptional and extremely unusual hardship” to her children as required by the statute. 8 U.S.C. § 1229b(b)(l)(D). Among other things, the IJ noted that the family has close relatives both in Mexico and the United States, that her son Ivan’s medical conditions do not appear particularly serious, and that any financial, emotional and educational detriment her children might suffer, though regrettable, would not rise to the level of an “exceptional and extremely unusual hardship.” The BIA agreed and dismissed Mateo’s appeal. Mateo petitions for review.
II.
Although we have jurisdiction to review final orders of removal under 8 U.S.C. § 1252(a)(1), we generally lack jurisdiction under 8 U.S.C. § 1252(a)(2)(B)® to review the discretionary decision of whether an alien has satisfied the hardship requirement for purposes of 8 U.S.C. § 1229b. See Cospito v. Att’y Gen., 539 F.3d 166, 170 (3d Cir.2008); Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 179 (3d Cir.2003). We retain jurisdiction, however, to review “ ‘constitutional claims or questions of law.’ ” Cospito, 539 F.3d at 170 (quoting 8 U.S.C. § 1252(a)(2)(D)). We do so de novo, subject to the principles of deference set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Wu v. Att’y Gen., 571 F.3d *339314, 317 (3d Cir.2009). In this case, Mateo raises two challenges to the BIA’s ruling that she did not establish the requisite level of hardship. We lack jurisdiction to review the first and the second lacks merit.1
Mateo first challenges the IJ’s and BIA’s assessment of the record. She frames her arguments in terms of the BIA’s failure both to review the entire record and to address her arguments regarding the IJ’s analysis. The BIA, however, expressly considered the specific factors on which she relies, and her assertion that the BIA failed to address her arguments regarding the IJ’s analysis does not state an independent basis for relief because the BIA issued its own decision and that is the decision we review. See Rranci v. Att’y Gen., 540 F.3d 165, 171 (3d Cir.2008).
Mateo’s specific arguments in this regard are that the IJ and BIA erred in failing to (1) consider the cumulative effect of the hardships faced by her children, (2) give adequate weight to the testimony of a psychologist who diagnosed her son Ivan with Attention Deficit Disorder, and (3) adequately consider the effect of her removal on her children’s health and education. As the Government argues, these claims “do not raise constitutional claims or questions of law.” Cospito, 539 F.3d at 170 (addressing arguments that IJ, inter alia, “gave ‘short shrift to crucial evidence’ ” and “ ‘simply looked at individual factors’ rather than provide an evaluation of the factors in the aggregate”) (citation omitted); see also Jarbough v. Att’y Gen., 483 F.3d 184, 189 (3d Cir.2007) (“[Cjourts have recognized arguments such as that an [IJ] or the BIA incorrectly weighed evidence, failed to consider evidence or improperly weighed equitable factors are not questions of law under § 1252(a)(2)(D).”). Instead, these arguments “amount to nothing more than ‘quarrels over the exercise of discretion and the correctness of the factual findings reached by the agency.’ ” Cospito, 539 F.3d at 170 (citation omitted). Accordingly, we lack jurisdiction to consider these arguments and will dismiss the petition for review to that extent. See id. at 171.2
Mateo also challenges the legal standard that the BIA applied. By way of background, Mateo was required to demonstrate that her “removal would result in exceptional and extremely unusual hardship” to her two United States citizen children. 8 U.S.C. § 1229b(b)(l)(D). The BIA has held that this standard requires a hardship that is “‘substantially’ beyond the ordinary hardship that would be expected when a close family member leaves this country.” In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 62 (BIA 2001). The BIA further explained that, although the hardship need not be “unconscionable,” the statute reserves cancellation for “ ‘truly exceptional’ situations[.]” Id. at 60-62 (citation omitted). The BIA later applied this standard in In re Andazola-Rivas, 23 1. & N. Dec. 319 (BIA 2002), and In re Recinas, 23 I. & N. Dec. 467 (BIA 2002), finding it satisfied in the latter case but not in the former.
*340In this case, the IJ and BIA cited all three decisions and expressly applied the Monreal-Aguinaga standard. The IJ also discussed Reciñas at some length because Mateo argued that her situation was analogous to the situation presented there. The IJ found Reciñas distinguishable and concluded that Mateo had failed to satisfy the Monrealr-Aguinaga standard, and the BIA agreed. Mateo raises three arguments regarding the standard employed by the BIA. To the extent that these arguments can be construed to raise constitutional claims or questions of law, they lack merit.
First, Mateo argues that Reciñas sets so high a standard that “most” immigrants cannot meet it, that in applying the standard the BIA thus “acted contrary to explicit Congressional intent and violated her due process rights,” and that this matter should be remanded for the BIA to apply an unspecified but “more realistic” standard. Reciñas, however, did not establish a legal standard at all. Instead, it merely applied the Monreal-Aguinaga standard to a specific set of facts. See BarcoSandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir.2008) (“Reciñas is so obviously an application of Monreal-Aguinaga ” that petitioner’s argument that it established a new standard “does not even reach the level of being colorable.”).
Mateo has not developed any challenge to that standard. She asserts that it is contrary to “Congressional intent,” but she cites no authority and does not argue that the BIA’s interpretation of the cancellation statute is impermissible under Chevron.3 She also asserts that the standard violates due process, but she again cites no authority and does not argue due process principles. See Jarbough, 483 F.3d at 190 (re-fecting purported due process claim where petitioner made “no attempt to tie his claim ... to the Due Process Clause” or its “requirements of notice and a meaningful opportunity to be heard”).
Second, Mateo argues that the BIA effectively applied the “unconscionability” standard it rejected in Monreal-Aguinaga. The IJ, however, expressly stated that “respondent need not establish the hardship is unconscionable,” (IJ Dec. at 4), and the BIA expressly applied Monreal-Aguinaga in affirming that ruling. Cf. Figueroa v. Mukasey, 543 F.3d 487, 491, 496 (9th Cir.2008) (remanding where IJ erred in expressly requiring a showing of “unconscionable” hardship).
Finally, Mateo appears to argue that the BIA should have applied the reasoning of the dissenting opinions in Andazola-Ri-vas. Suffice it to say that the BIA was not required to do so. Accordingly, we will dismiss in part and deny in part the petition for review.
. Mateo devotes over ten pages of her brief to discussing non-precedential opinions issued by this Court, other Courts of Appeals, and the BIA. We generally do not rely on our non-precedential opinions, let alone those of other courts. See Jamison v. Klem, 544 F.3d 266, 278 n. 11 (3d Cir.2008); Third Circuit Internal Operating Procedure 5.7. Non-prece-dential opinions by the BIA may be relevant if it "reach[ed] an exactly contrary decision on a materially indistinguishable set of facts,” Shardar v. Att’y Gen., 503 F.3d 308, 315 (3d Cir.2007), but such is not the case here.
. We nevertheless note that, contrary to Ma-teo’s arguments, both the IJ and BIA expressly considered the relevant factors in the aggregate. (BIA Dec. at 2.)
. Mateo's argument that the standard is so restrictive that "most” immigrants cannot satisfy it provides no reason to question whether the BIA's interpretation of the statute is permissible. The statute requires an “exceptional and extremely unusual hardship,” 8 U.S.C. § 1229b(b)(l)(D), which by definition will not be satisfied by "most” immigrants. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478757/ | OPINION OF THE COURT
RENDELL, Circuit Judge.
Following a jury trial in April 2003, Appellants Ryan Washington and Ronald Blackwell, along with their two co-defendants,1 were convicted of various federal *342crimes related to a string of nine (a tenth was attempted) armed bank robberies.2 Washington was sentenced to 619 months, and Blackwell was sentenced to 444 months of imprisonment. Both sentences included a mandatory consecutive 7-year term of imprisonment pursuant to 18 U.S.C. § 924(c)(1 )(A)(ii), and a mandatory consecutive 25-year term of imprisonment pursuant to 18 U.S.C. § 924(c)(1)(C)(i).
We affirmed the convictions on direct appeal, concluding “that there was ample evidence to support the jury’s finding of guilt on each count.” United States v. Goggans, 257 Fed.Appx. 515, 517 (3d Cir.2007). We also concluded that “[t]he District Court did not err in imposing” the two sentence enhancements pursuant to § 924(c). Id. at 518. We remanded to the District Court, however, for the sole purpose of resentencing on the substantive crimes of conviction in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Consequently, the District Court resentenced Washington to 444 months of imprisonment, and it re-imposed Blackwell’s original sentence. Both Washington and Blackwell appealed.3
Counsel for Blackwell has filed a brief in support of his appeal. Counsel for Washington, on the other hand, has filed a motion to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating that no non-frivolous issues exist for appeal. Washington has not filed a pro se brief. We separately address the appeals of Blackwell and Washington, in that order.
Blackwell’s Appeal
Blackwell argues that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), he should not have received two mandatory consecutive § 924(c) sentences because “[t]he jury verdict in this case does not make clear whether or not the jury found beyond a reasonable doubt that the defendant used a gun in two crimes of violence.” This claim was asserted in Blackwell’s previous appeal, and we rejected it.
Blackwell misunderstands the scope of this second appeal. The only issue before us is whether he was properly resentenced for the substantive crimes of conviction under Booker and its progeny. See Coleman, 575 F.3d at 318, 321. Thus, Blackwell’s claim in the current appeal is improperly raised, and we do not reach the merits.
Washington’s Appeal
As noted above, counsel for Washington has moved to withdraw, filing an Anders brief. We ask two questions when presented with an Anders brief: (1) whether the brief is adequate on its face; and (2) whether our independent review of the record reveals any issues that are not frivolous. United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001). An Anders brief will be deemed adequate if the Court is satisfied that counsel has “thoroughly examined the record in search of appealable issues” and explained why the issues are frivolous. Id. Where counsel’s Anders brief is adequate, we confine our inquiry to issues raised by counsel and by the defendant in his pro se brief. Id. at 301.
*343Here, because counsel’s Anders brief does not address the substantive or procedural reasonableness of Washington’s new sentence, we find the brief inadequate on its face. See Coleman, 575 F.3d at 319.4 True, counsel “need not raise and reject every possible claim.” Youla, 241 F.3d at 300. But, just as we stated in reference to Blackwell’s appeal, the only issues that could properly be raised in Washington’s appeal concern either the legality of the sentence imposed by the District Court, or of the nature of the resentencing hearing, following our remand. As a result, we cannot say that counsel’s brief demonstrates a “conscientious examination” of the record. Id. Nevertheless, we will not appoint new counsel, as we do not need further assistance; after independent review of the record, we are satisfied that Washington’s appeal is patently frivolous. See United States v. Marvin, 211 F.3d 778, 781 (3d Cir.2000) (stating that even where counsel’s Anders brief is inadequate, a court may still dismiss the appeal if its frivolousness is patent).
We can find no basis to conclude that the District Court abused its discretion in resentencing Washington, whereby his term of imprisonment was reduced from 619 to 444 months. The District Court engaged in the three-step sentencing analysis we prescribed in United States v. Gunter; 462 F.3d 237, 247 (3d Cir.2006). It followed the procedures announced in Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), by giving meaningful consideration to the pertinent sentencing factors embodied in 18 U.S.C. § 3553(a). And the District Court provided adequate justification for the new sentence, which is both below the statutory maximum and reasonable. See United States v. Cooper, 437 F.3d 324, 327-28 (3d Cir.2006). As a result, Washington can raise no non-frivolous issues with respect to the legality of his new sentence.
Conclusion
In sum, counsel for Blackwell has failed to provide us with a viable reason to question the District Court’s resentencing, and our independent review of the record yields no non-frivolous issues in Washington’s appeal.
Accordingly, we will AFFIRM the amended Judgment and Conviction Orders of the District Court and, in a separate order, will GRANT the motion of Washington’s counsel to withdraw.5
. The two co-defendants were Trenell Coleman and Lacy Goggans. We recently dismissed Coleman's appeal following re-sentencing. See United States v. Coleman, 575 F.3d 316 (3d Cir.2009). Goggans' appeal *342from the denial of his motion to reduce his sentence is pending. See CA No. 09-1010.
. These crimes included conspiracy to commit Hobbs Act robberies, in violation of 18 U.S.C. § 1951; attempted bank robbery, in violation of 18 U.S.C. § 2113(a); and two counts of using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1) and (2).
. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
. Counsel notes only that the resentencing hearing complied with Fed.R.Crim.P. 32, and that the imposition of two separate § 924(c) sentence enhancements was not improper.
. We also conclude that Washington's appeal lacks legal merit for the purposes of filing a petition for writ of certiorari in the United States Supreme Court. See Third Circuit LAR 109.2(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478761/ | OPINION
PER CURIAM.
John J. Tauro appeals pro se from the District Court’s order granting defendants’ motions to dismiss. For the reasons discussed below, we agree with the District Court’s disposition of the motions and will dismiss the appeal.
I.
Tauro filed a civil rights complaint pursuant to 42 U.S.C. § 1983 in the District Court against Allegheny County (the “County”) and certain officials, claiming that they violated his Fourteenth Amendment rights to procedural and substantive due process. It appears that Tauro believes there was a procedural defect in the collection activities taken against him for unpaid child support. He claims that he has been “subjected to an outlawed ‘debt- or’s prison,’ ” and that defendants have “used arrest and incarceration to collect judgments.” He further claims that the County’s policies are unconstitutional “as applied” and “on their face,” and that the solicitor has “engaged in representation” that is prohibited by law.
*347Tauro has filed three prior lawsuits against a variety of County defendants on the same set of facts. He alleges generally that he and his child’s mother entered into an agreement that suspended his child support obligations. However, as the District Court explained in his first suit, the mother was on welfare assistance, and, in order to receive it, had assigned her child support rights to the Pennsylvania Department of Public Welfare (“DPW”). When Tauro and the mother signed the suspension agreement, the state court entered an order confirming that the $14,162.75 Tauro owed in child support arrears were assigned due to the DPW. Tauro failed to comply with the order and his lawsuit was dismissed as frivolous. See generally, Tauro v. Mulligan, Civil Action No. 02-495 (W-D.Pa.2002).
Tauro’s second lawsuit challenged the collection activities taken against him for the arrears owed to the DPW. The District Court concluded that Tauro was collaterally estopped from raising his claims and his complaint was dismissed as frivolous. See generally, Tauro v. Pa. Dep’t Pub. Welfare, Civil Action No. 05-480, 2005 WL 3003081 (W.D.Pa.2005). We affirmed. Tauro v. Pa. Dep’t Pub. Welfare, 206 Fed.Appx. 152 (3d Cir.2006).
In 2008, Tauro filed a third lawsuit claiming that Justice Max Baer had issued criminal warrants and had held criminal trials in family court without the authority to do so. See generally, Tauro v. Baer, Civil Action No. 08-1545 (W.D.Pa.2008). He claimed that the Commonwealth’s attempt to collect the judgment against him resulted in his arrest and incarceration in “debtor’s prison.” The District Court determined that his claims were barred by the Rooker-Feldman doctrine, which precludes lower federal courts from exercising appellate jurisdiction over final state court judgments. See FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834, 840 (3d Cir.1996).
Tauro filed this fourth complaint in 2009. The District Court granted defendants’ motions to dismiss with prejudice, and denied as moot Tauro’s motion to remove his attorney. Tauro filed a timely notice of appeal.
II.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our review of an order granting a motion to dismiss is plenary. See Santiago v. GMAC Mortgage Group, Inc., 417 F.3d 384, 386 (3d Cir.2005). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In deciding a motion to dismiss, a court must determine whether the complaint “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).
III.
The District Court concluded that Tauro’s claims regarding the agreements and actions of the solicitor are precluded by the doctrine of collateral estoppel. See generally, Henglein v. Colt Indus. Operating Corp., 260 F.3d 201, 209 (3d Cir.2001). In the Memorandum Opinion, the District Court found that the solicitor’s immunity for his role in “civil contempt” proceedings against Tauro was “ ‘actually litigated’ and ‘essential’ to a ‘a final and valid judgment’” in Tauro’s first lawsuit in 2003. Likewise, in 2006, we affirmed that his claims alleging that Pennsylvania law pro*348hibited the agreements the solicitor entered into to “engage[ ] in representation” were without merit. See Tauro, 206 Fed.Appx. at 154. Accordingly, we agree with the District Court that these claims are barred by the doctrine of collateral estoppel.
We also agree with the District Court’s conclusion that Tauro’s remaining claims against the County and the sheriff have no basis in fact or law. Tauro’s attempts to equate civil contempt and resulting arrest and incarceration with being charged with a “civil crime” and being subjected to “debtor’s prison” have no basis in any relevant law. Additionally, his claims that the County’s policies permitting civil contempt pending payment of child support are unconstitutional “as applied” and “on their face,” have no basis in fact or law. As the District Court found, civil confinement pursuant to a civil contempt order is a valid method of assuring compliance with judgments. See Chadwick v. Janecka, 312 F.3d 597, 613 (3d Cir.2002) (citations omitted).1
Finally, the District Court correctly concluded that civil contempt in Tauro’s circumstances would not violate the provisions or “due process requirements” of “45 C.F.R.” or “23 Pa.C.S.A.” Civil contempt is a valid method of enforcing child support judgments. Neither regulation protects Tauro from the consequences of failing to comply with a judgment.
IV.
After careful consideration, we have concluded that there is no arguable merit to this appeal. Accordingly, we will dismiss the appeal pursuant to 28 U.S.C. § 1915(e).
. Tauro does not challenge the judgment order against him for nonpayment of child support due to DPW, nor does he argue an inability to pay the child support. He acknowledges that the County's policy is to release an individual once the judgment has been satisfied. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478655/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jacqueline Woods appeals the district court’s order dismissing her action with prejudice for failure to state a claim. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Woods v. Smith, No. 1:09-ev-00527-JCC-IDD (E.D.Va. Oct. 6, 2009). Additionally, we deny Woods’s motion to strike and motion to compel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478656/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rodriguez Samuel Da Matha De Santan-na appeals from the district court order dismissing his claims against the law firm of Bradley Arant Boult Cummings LLP (“Bradley Arant”). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Da Matha De Santanna v. Bradley Arant Cummings LLP, No. 8:09-cv-02438-RWT (D.Md. Sept. 30, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478658/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ozie M. Ware seeks to appeal the district court order dismissing his claims against two of the four Defendants named in his law suit. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. *408541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Ware seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478660/ | Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carlos Woods petitions for a writ of mandamus, alleging that the district court has unduly delayed acting on his motion for a new trial and new counsel. He seeks an order from this court directing the district court to act. Our review of the district court’s docket sheet reveals that the district court recently denied Woods’ motion. Accordingly, because the district court has acted on the motion, 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/8478662/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darnell Allen Faulkner appeals the district court’s order granting his 18 U.S.C. § 3582(c)(2) (2006) motion for a sentence reduction. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Faulkner, No. 1:03-cr-00460-AMD-1(D.Md. Aug. 25, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478664/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard Mondell Gore appeals the district court’s orders reducing his sentence pursuant to the Government’s Fed. R.Crim.P. 35(b) motion and granting in part and denying in part reconsideration of . that order. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s orders and deny as moot Gore’s motion to expedite the decision. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478760/ | OPINION
PER CURIAM.
John J. Tauro appeals pro se from the District Court’s order granting defendants’ motions to dismiss. For the reasons discussed below, we agree with the District Court’s disposition of the motions and will dismiss the appeal.
I.
Tauro filed a civil rights complaint pursuant to 42 U.S.C. § 1983 in the District Court against Allegheny County (the “County”) and certain officials, claiming that they violated his Fourteenth Amendment rights to procedural and substantive due process. It appears that Tauro believes there was a procedural defect in the collection activities taken against him for unpaid child support. He claims that he has been “subjected to an outlawed ‘debt- or’s prison,’ ” and that defendants have “used arrest and incarceration to collect judgments.” He further claims that the County’s policies are unconstitutional “as applied” and “on their face,” and that the solicitor has “engaged in representation” that is prohibited by law.
*347Tauro has filed three prior lawsuits against a variety of County defendants on the same set of facts. He alleges generally that he and his child’s mother entered into an agreement that suspended his child support obligations. However, as the District Court explained in his first suit, the mother was on welfare assistance, and, in order to receive it, had assigned her child support rights to the Pennsylvania Department of Public Welfare (“DPW”). When Tauro and the mother signed the suspension agreement, the state court entered an order confirming that the $14,162.75 Tauro owed in child support arrears were assigned due to the DPW. Tauro failed to comply with the order and his lawsuit was dismissed as frivolous. See generally, Tauro v. Mulligan, Civil Action No. 02-495 (W-D.Pa.2002).
Tauro’s second lawsuit challenged the collection activities taken against him for the arrears owed to the DPW. The District Court concluded that Tauro was collaterally estopped from raising his claims and his complaint was dismissed as frivolous. See generally, Tauro v. Pa. Dep’t Pub. Welfare, Civil Action No. 05-480, 2005 WL 3003081 (W.D.Pa.2005). We affirmed. Tauro v. Pa. Dep’t Pub. Welfare, 206 Fed.Appx. 152 (3d Cir.2006).
In 2008, Tauro filed a third lawsuit claiming that Justice Max Baer had issued criminal warrants and had held criminal trials in family court without the authority to do so. See generally, Tauro v. Baer, Civil Action No. 08-1545 (W.D.Pa.2008). He claimed that the Commonwealth’s attempt to collect the judgment against him resulted in his arrest and incarceration in “debtor’s prison.” The District Court determined that his claims were barred by the Rooker-Feldman doctrine, which precludes lower federal courts from exercising appellate jurisdiction over final state court judgments. See FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834, 840 (3d Cir.1996).
Tauro filed this fourth complaint in 2009. The District Court granted defendants’ motions to dismiss with prejudice, and denied as moot Tauro’s motion to remove his attorney. Tauro filed a timely notice of appeal.
II.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our review of an order granting a motion to dismiss is plenary. See Santiago v. GMAC Mortgage Group, Inc., 417 F.3d 384, 386 (3d Cir.2005). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In deciding a motion to dismiss, a court must determine whether the complaint “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).
III.
The District Court concluded that Tauro’s claims regarding the agreements and actions of the solicitor are precluded by the doctrine of collateral estoppel. See generally, Henglein v. Colt Indus. Operating Corp., 260 F.3d 201, 209 (3d Cir.2001). In the Memorandum Opinion, the District Court found that the solicitor’s immunity for his role in “civil contempt” proceedings against Tauro was “ ‘actually litigated’ and ‘essential’ to a ‘a final and valid judgment’” in Tauro’s first lawsuit in 2003. Likewise, in 2006, we affirmed that his claims alleging that Pennsylvania law pro*348hibited the agreements the solicitor entered into to “engage[ ] in representation” were without merit. See Tauro, 206 Fed.Appx. at 154. Accordingly, we agree with the District Court that these claims are barred by the doctrine of collateral estoppel.
We also agree with the District Court’s conclusion that Tauro’s remaining claims against the County and the sheriff have no basis in fact or law. Tauro’s attempts to equate civil contempt and resulting arrest and incarceration with being charged with a “civil crime” and being subjected to “debtor’s prison” have no basis in any relevant law. Additionally, his claims that the County’s policies permitting civil contempt pending payment of child support are unconstitutional “as applied” and “on their face,” have no basis in fact or law. As the District Court found, civil confinement pursuant to a civil contempt order is a valid method of assuring compliance with judgments. See Chadwick v. Janecka, 312 F.3d 597, 613 (3d Cir.2002) (citations omitted).1
Finally, the District Court correctly concluded that civil contempt in Tauro’s circumstances would not violate the provisions or “due process requirements” of “45 C.F.R.” or “23 Pa.C.S.A.” Civil contempt is a valid method of enforcing child support judgments. Neither regulation protects Tauro from the consequences of failing to comply with a judgment.
IV.
After careful consideration, we have concluded that there is no arguable merit to this appeal. Accordingly, we will dismiss the appeal pursuant to 28 U.S.C. § 1915(e).
. Tauro does not challenge the judgment order against him for nonpayment of child support due to DPW, nor does he argue an inability to pay the child support. He acknowledges that the County's policy is to release an individual once the judgment has been satisfied. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478762/ | OPINION
PER CURIAM.
Petitioner Mohamed Sanoussi Diallo seeks review of a decision by the Board of Immigration Appeals (“BIA”) rendered on July 25, 2008. For the following reasons, we will deny the petition for review.
I. Background,
Diallo is a native and citizen of Guinea. He entered the United States on a visitor’s visa in July 2004 and applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Diallo claims he suffered past persecution and fears future persecution and torture in Guinea on account of his political opinion and ethnicity. Specifically, Diallo is a member of the “RPG,” Guinea’s political opposition party. He is of Fulani ethnicity, while the ruling party, the “PUP,” is comprised of people of Sous-sou ethnicity. Diallo claims that because of his ethnicity and political affiliation, authorities in Guinea imprisoned him four times, tortured him, and subjected him to inhumane conditions. He claims to fear returning to Guinea because he will be imprisoned for life or executed.
Diallo conceded removability. After a hearing on the merits, the Immigration Judge (“IJ”) issued an oral decision on August 24, 2006. She concluded that Dial-lo was not credible and therefore denied his application. On appeal, the BIA adopted and affirmed the IJ’s decision. The BIA concluded that the IJ’s findings of fact were not clearly erroneous, and that the numerous shortcomings and inconsistencies the IJ had identified were substantial, went to the heart of Diallo’s claims, and were not adequately explained. The BIA also rejected Diallo’s argument that the IJ misapplied the legal standards for credibility and corroboration.
Through counsel, Diallo filed a timely petition for review.1
II. Analysis
We generally review only final orders of the BIA. See Li v. Att’y Gen., 400 F.3d *350157, 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 some of 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 adverse credibility determinations for substantial evidence. Id. at 221-22. The adverse credibility finding therefore will be affirmed if it is supported by “reasonable, substantial, and probative evidence on the record considered as a whole.” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). To reverse, the evidence of Diallo’s credibility must be so strong “that in a civil trial he would be entitled to judgment on the credibility issue as a matter of law.” Chen, 376 F.3d at 222.
A.
We have closely reviewed the adverse credibility determination made by the IJ and affirmed by the BIA, and we conclude that it rests upon substantial evidence. The IJ specifically several serious inconsistencies and implausibilities in the evidence, including:
(1) Diallo provided a letter from an RPG leader to support his asylum application. (See A.R. 419.) It indicated that Diallo requested the letter in February 2000, although Diallo did not arrive in the United States and apply for asylum until 2004. Diallo and his counsel provided differing explanations for the discrepancy and neither explained why, if the letter contained an error, they failed to correct or address it.
(2) Diallo provided a doctor’s letter indicating that he was treated at a government hospital in June 2004. The IJ found this implausible because the hospitalization allegedly occurred immediately after Diallo escaped from a nearby military camp in the same city, where he had allegedly been imprisoned and tortured as a traitor to the government.
(3) Diallo obtained a visa to visit China in May 2004, during the time he was allegedly imprisoned. The IJ found implausible Diallo’s explanation that his business associates obtained the visa on his behalf so he could travel to China on business after his release. In particular, she questioned whether it is possible for a business associate to obtain a visa on behalf of someone else and whether it is logical to obtain a visa for business travel for a political prisoner who is being physically tortured and indefinitely detained.
(4) Diallo testified that he was treated in a hospital for serious injuries relating to his imprisonment from June 9 to June 17, 2004, but he appeared at the American Embassy to obtain a visa on June 15, 2004, and did not seek asylum at that time.
(5) Diallo obtained a Guinean passport in May 2003, despite having been allegedly arrested as a traitor to the government three times before that date.
The IJ concluded that these issues, taken together, “severely diminish [Diallo’s] credibility to the point where the Court finds that respondent’s accounts of his arrests in Guinea and torture and persecution to be incredible.” (A.R. 132, IJ Decision at 32.)
The IJ provided specific, cogent reasons for concluding that the implausibilities and inconsistencies undermined Diallo’s credibility.2 These issues, particularly concern*351ing Diallo’s alleged periods of imprisonment in Guinea, clearly go to the “heart” of his claims.3 See Berishaj v. Ashcroft, 378 F.3d 314, 323 (3d Cir.2004). Although Diallo argues that the IJ should have accepted his “honest explanations” for the identified inconsistencies, Diallo’s proposed alternative interpretations, even if plausible, do not demonstrate that the IJ’s findings of fact are not supported by substantial evidence.
B.
Diallo next argues that the IJ and BIA applied the wrong legal standards to his claims. First, he contends the IJ erred by comparing his oral testimony to his documentary evidence, because his oral testimony was “internally consistent” and, considering his testimony alone, there are no “actual discrepancies.” He claims his documentary evidence could only be considered in the context of whether or not he met the standard for providing corroborating evidence, not in the course of assessing his credibility.
We disagree. The IJ properly considered the record as a whole, including both Diallo’s oral testimony and his proffered documentary evidence, in assessing the overall credibility of his claims. See, e.g., Abdulai, 239 F.3d at 551 n. 6 (a credibility determination may be appropriately based upon “contradictory evidence” and “inherently improbable testimony”). Diallo has offered nothing to convince us otherwise.
Second, in a related argument, Diallo claims that the IJ and BIA erroneously conflated the standards for credibility and corroboration. Diallo is correct that “corroboration and credibility, although intuitively related, are distinct concepts that should be analyzed independently.” Obale v. Att’y Gen., 453 F.3d 151, 163 (3d Cir.2006). In this case, however, the argument is to no avail. As we have already discussed, the IJ and BIA rejected Diallo’s claims based upon his lack of credibility. Diallo has failed to establish that the decision “flowed in substantial part from a lack of sufficient corroboration.”4 See id.
C.
Finally, Diallo urges us to apply a decision by the Court of Appeals for the Seventh Circuit, Diallo v. Gonzales, 439 F.3d 764, 765-67 (7th Cir.2006). In that case, the IJ failed to make a credibility finding and denied the applicant’s claim based solely upon a lack of corroborating evidence. The Seventh Circuit held that the IJ erred in several respects: by failing to make a credibility finding, by failing to explain why the proposed corroboration would have been reasonable, and by failing to support the factual findings with specific, cogent reasons. See id. at 766. Even apart from the fact that this case is not binding precedent in this jurisdiction, Dial-lo has failed to convince us that the decision is relevant to our consideration of his *352claims. In this case, the IJ and BIA rejected Diallo’s application based upon his lack of credibility, not because of a failure to provide corroborating evidence.
III. Conclusion
For the foregoing reasons, we will deny the petition for review.
. Diallo did not receive prompt notice of the BIA’s July 25, 2008, decision. Pursuant to a joint motion by Diallo and the Government, the BIA re-issued its decision on April 6, 2009. Diallo then filed his timely petition for review.
. Diallo implies that "implausibilities” are inadequate to support an adverse credibility determination. However, assessment of an *351applicant’s credibility entails review of factors such as inherent improbability. See Jish-iashvili v. Att’y Gen., 402 F.3d 386, 392-93 (3d Cir.2005).
. Diallo filed his asylum application in 2004. Accordingly, the REAL ID Act, which modified this standard, does not apply to his claims. See 8 U.S.C. § 1158(b)(1)(B).
. We note one minor arguable error in this regard: When the IJ found that Diallo failed to provide a statement from his uncle, an important witness to many of the alleged events, the IJ considered this shortcoming in the context of Diallo's credibility rather than in a separate corroboration analysis. However, as we previously discussed, the IJ found at least five other substantial inconsistencies and implausibilities, which clearly support the adverse credibility determination. Accordingly, this single arguable error is not sufficient to undermine the conclusion that the adverse credibility finding rests upon substantial evidence and did not flow in “substantial part” from a failure to corroborate. See id. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478825/ | PER CURIAM.
Dollether Tobar appeals the district court’s2 adverse grant of summary judgment in her employment-discrimination action. After careful de novo review, see Sutherland v. Mo. Dep’t of Corrs., 580 F.3d 748, 750 (8th Cir.2009), we conclude summary judgment was proper for the reasons stated in the district court’s thorough, well-reasoned order. Accordingly, we affirm. See 8th Cir. R. 47B.
. The Honorable J. Leon Holmes, Chief Judge, United States District Court for the Eastern District of Arkansas. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478654/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jacqueline Woods appeals the district court’s order dismissing her action with prejudice for failure to state a claim. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Woods v. Smith, No. 1:09-ev-00527-JCC-IDD (E.D.Va. Oct. 6, 2009). Additionally, we deny Woods’s motion to strike and motion to compel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478657/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rodriguez Samuel Da Matha De Santan-na appeals from the district court order dismissing his claims against the law firm of Bradley Arant Boult Cummings LLP (“Bradley Arant”). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Da Matha De Santanna v. Bradley Arant Cummings LLP, No. 8:09-cv-02438-RWT (D.Md. Sept. 30, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478659/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ozie M. Ware seeks to appeal the district court order dismissing his claims against two of the four Defendants named in his law suit. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. *408541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Ware seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478661/ | Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carlos Woods petitions for a writ of mandamus, alleging that the district court has unduly delayed acting on his motion for a new trial and new counsel. He seeks an order from this court directing the district court to act. Our review of the district court’s docket sheet reveals that the district court recently denied Woods’ motion. Accordingly, because the district court has acted on the motion, 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/8478663/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darnell Allen Faulkner appeals the district court’s order granting his 18 U.S.C. § 3582(c)(2) (2006) motion for a sentence reduction. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Faulkner, No. 1:03-cr-00460-AMD-1(D.Md. Aug. 25, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478763/ | OPINION
PER CURIAM.
Petitioner Mohamed Sanoussi Diallo seeks review of a decision by the Board of Immigration Appeals (“BIA”) rendered on July 25, 2008. For the following reasons, we will deny the petition for review.
I. Background,
Diallo is a native and citizen of Guinea. He entered the United States on a visitor’s visa in July 2004 and applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Diallo claims he suffered past persecution and fears future persecution and torture in Guinea on account of his political opinion and ethnicity. Specifically, Diallo is a member of the “RPG,” Guinea’s political opposition party. He is of Fulani ethnicity, while the ruling party, the “PUP,” is comprised of people of Sous-sou ethnicity. Diallo claims that because of his ethnicity and political affiliation, authorities in Guinea imprisoned him four times, tortured him, and subjected him to inhumane conditions. He claims to fear returning to Guinea because he will be imprisoned for life or executed.
Diallo conceded removability. After a hearing on the merits, the Immigration Judge (“IJ”) issued an oral decision on August 24, 2006. She concluded that Dial-lo was not credible and therefore denied his application. On appeal, the BIA adopted and affirmed the IJ’s decision. The BIA concluded that the IJ’s findings of fact were not clearly erroneous, and that the numerous shortcomings and inconsistencies the IJ had identified were substantial, went to the heart of Diallo’s claims, and were not adequately explained. The BIA also rejected Diallo’s argument that the IJ misapplied the legal standards for credibility and corroboration.
Through counsel, Diallo filed a timely petition for review.1
II. Analysis
We generally review only final orders of the BIA. See Li v. Att’y Gen., 400 F.3d *350157, 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 some of 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 adverse credibility determinations for substantial evidence. Id. at 221-22. The adverse credibility finding therefore will be affirmed if it is supported by “reasonable, substantial, and probative evidence on the record considered as a whole.” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). To reverse, the evidence of Diallo’s credibility must be so strong “that in a civil trial he would be entitled to judgment on the credibility issue as a matter of law.” Chen, 376 F.3d at 222.
A.
We have closely reviewed the adverse credibility determination made by the IJ and affirmed by the BIA, and we conclude that it rests upon substantial evidence. The IJ specifically several serious inconsistencies and implausibilities in the evidence, including:
(1) Diallo provided a letter from an RPG leader to support his asylum application. (See A.R. 419.) It indicated that Diallo requested the letter in February 2000, although Diallo did not arrive in the United States and apply for asylum until 2004. Diallo and his counsel provided differing explanations for the discrepancy and neither explained why, if the letter contained an error, they failed to correct or address it.
(2) Diallo provided a doctor’s letter indicating that he was treated at a government hospital in June 2004. The IJ found this implausible because the hospitalization allegedly occurred immediately after Diallo escaped from a nearby military camp in the same city, where he had allegedly been imprisoned and tortured as a traitor to the government.
(3) Diallo obtained a visa to visit China in May 2004, during the time he was allegedly imprisoned. The IJ found implausible Diallo’s explanation that his business associates obtained the visa on his behalf so he could travel to China on business after his release. In particular, she questioned whether it is possible for a business associate to obtain a visa on behalf of someone else and whether it is logical to obtain a visa for business travel for a political prisoner who is being physically tortured and indefinitely detained.
(4) Diallo testified that he was treated in a hospital for serious injuries relating to his imprisonment from June 9 to June 17, 2004, but he appeared at the American Embassy to obtain a visa on June 15, 2004, and did not seek asylum at that time.
(5) Diallo obtained a Guinean passport in May 2003, despite having been allegedly arrested as a traitor to the government three times before that date.
The IJ concluded that these issues, taken together, “severely diminish [Diallo’s] credibility to the point where the Court finds that respondent’s accounts of his arrests in Guinea and torture and persecution to be incredible.” (A.R. 132, IJ Decision at 32.)
The IJ provided specific, cogent reasons for concluding that the implausibilities and inconsistencies undermined Diallo’s credibility.2 These issues, particularly concern*351ing Diallo’s alleged periods of imprisonment in Guinea, clearly go to the “heart” of his claims.3 See Berishaj v. Ashcroft, 378 F.3d 314, 323 (3d Cir.2004). Although Diallo argues that the IJ should have accepted his “honest explanations” for the identified inconsistencies, Diallo’s proposed alternative interpretations, even if plausible, do not demonstrate that the IJ’s findings of fact are not supported by substantial evidence.
B.
Diallo next argues that the IJ and BIA applied the wrong legal standards to his claims. First, he contends the IJ erred by comparing his oral testimony to his documentary evidence, because his oral testimony was “internally consistent” and, considering his testimony alone, there are no “actual discrepancies.” He claims his documentary evidence could only be considered in the context of whether or not he met the standard for providing corroborating evidence, not in the course of assessing his credibility.
We disagree. The IJ properly considered the record as a whole, including both Diallo’s oral testimony and his proffered documentary evidence, in assessing the overall credibility of his claims. See, e.g., Abdulai, 239 F.3d at 551 n. 6 (a credibility determination may be appropriately based upon “contradictory evidence” and “inherently improbable testimony”). Diallo has offered nothing to convince us otherwise.
Second, in a related argument, Diallo claims that the IJ and BIA erroneously conflated the standards for credibility and corroboration. Diallo is correct that “corroboration and credibility, although intuitively related, are distinct concepts that should be analyzed independently.” Obale v. Att’y Gen., 453 F.3d 151, 163 (3d Cir.2006). In this case, however, the argument is to no avail. As we have already discussed, the IJ and BIA rejected Diallo’s claims based upon his lack of credibility. Diallo has failed to establish that the decision “flowed in substantial part from a lack of sufficient corroboration.”4 See id.
C.
Finally, Diallo urges us to apply a decision by the Court of Appeals for the Seventh Circuit, Diallo v. Gonzales, 439 F.3d 764, 765-67 (7th Cir.2006). In that case, the IJ failed to make a credibility finding and denied the applicant’s claim based solely upon a lack of corroborating evidence. The Seventh Circuit held that the IJ erred in several respects: by failing to make a credibility finding, by failing to explain why the proposed corroboration would have been reasonable, and by failing to support the factual findings with specific, cogent reasons. See id. at 766. Even apart from the fact that this case is not binding precedent in this jurisdiction, Dial-lo has failed to convince us that the decision is relevant to our consideration of his *352claims. In this case, the IJ and BIA rejected Diallo’s application based upon his lack of credibility, not because of a failure to provide corroborating evidence.
III. Conclusion
For the foregoing reasons, we will deny the petition for review.
. Diallo did not receive prompt notice of the BIA’s July 25, 2008, decision. Pursuant to a joint motion by Diallo and the Government, the BIA re-issued its decision on April 6, 2009. Diallo then filed his timely petition for review.
. Diallo implies that "implausibilities” are inadequate to support an adverse credibility determination. However, assessment of an *351applicant’s credibility entails review of factors such as inherent improbability. See Jish-iashvili v. Att’y Gen., 402 F.3d 386, 392-93 (3d Cir.2005).
. Diallo filed his asylum application in 2004. Accordingly, the REAL ID Act, which modified this standard, does not apply to his claims. See 8 U.S.C. § 1158(b)(1)(B).
. We note one minor arguable error in this regard: When the IJ found that Diallo failed to provide a statement from his uncle, an important witness to many of the alleged events, the IJ considered this shortcoming in the context of Diallo's credibility rather than in a separate corroboration analysis. However, as we previously discussed, the IJ found at least five other substantial inconsistencies and implausibilities, which clearly support the adverse credibility determination. Accordingly, this single arguable error is not sufficient to undermine the conclusion that the adverse credibility finding rests upon substantial evidence and did not flow in “substantial part” from a failure to corroborate. See id. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478765/ | OPINION
AMBRO, Circuit Judge.
Madge and Laurence Rosenberg appeal the District Court’s affirmance of the Bankruptcy Court’s order granting the debtors’ motion to avoid a judicial lien pursuant to 11 U.S.C. § 522(f). For the reasons that follow, we affirm.1
I.
Because we write solely for the parties, we will only summarize the convoluted procedural history of this case. In 2002, Madge and Laurence Rosenberg hired Corio Builders — a contracting business owned by John and Holly Corio — to perform construction work on the Rosen-bergs’ home. The Rosenbergs were dissatisfied with the work and sued the Corios in the New Jersey Superior Court in March 2003 for breach of contract and violations of New Jersey’s consumer fraud statute. In the summer of 2005, the Corios and Rosenbergs agreed to settle the case for $7,500. They entered into a Stipulation of Settlement setting forth a schedule for installment payments and providing that, in the event of a default, a $130,000 judgment2 would be entered against Corio Builders and the Corios individually.
Unbeknownst to the Rosenbergs, the Corios had filed for Chapter 13 bankruptcy protection in the Bankruptcy Court for the District of New Jersey in August 2002 (before they were sued by the Rosenbergs, and before the Corios performed most of the work on the Rosenbergs’ home). When the Corios’ bankruptcy counsel learned of the Rosenbergs’ lawsuit in September 2005, he sent a letter to the Superior Court and counsel for the Rosenbergs informing them of the bankruptcy filing and invoking the automatic stay.
In August 2006 — after the Corios apparently missed a scheduled settlement payment — the Rosenbergs sought relief from the automatic stay to permit them to pursue the entry of judgment against the Corios in state court. The Bankruptcy Court granted that motion. In January 2007, the Corios converted their Chapter 13 case to a Chapter 7 case, and moved the Bankruptcy Court to reimpose the automatic stay. It denied the motion, and again authorized the Rosenbergs to pursue the entry of judgment in state court. In March 2007, the Superior Court entered judgment in favor of the Rosenbergs in the amount of $130,000, and the Rosenbergs obtained a judicial lien on the Corios’ home.
*354In July 2007, the Rosenbergs filed an adversary proceeding seeking a declaratory judgment that the Corios’ personal liability was not dischargeable, and the judicial lien was valid. In response, the Corios moved to dismiss the Rosenbergs’ adversary complaint, and cross-moved to (a) discharge the Corios’ personal liability and (b) avoid the judicial lien pursuant to 11 U.S.C. § 522(f). In September 2007, the Rosenbergs submitted a letter brief “in Opposition to Debtors’ Motion to Dismiss Adversary Proceeding,” but failed to address the Corios’ cross-motion to avoid the lien pursuant to § 522(f). Instead, the Rosenbergs, relying on our decision in In re Wedgewood, 878 F.2d 693 (3d Cir.1989), argued that the Corios could not discharge their personal liability or avoid the judicial lien because the Bankruptcy Court had never reimposed the automatic stay.
The Bankruptcy Court held a hearing on the Corios’ motion in September 2007, and ruled that their personal liability was dis-chargeable. During this hearing, the Rosenbergs argued for the first time that § 522(f) was inapplicable (aside from the applicability of In re Wedgewood) because the judicial lien did not exist on the date the Corios filed for Chapter 13 bankruptcy. However, because the Rosenbergs had not responded to the Corios’ motion to avoid the judicial lien pursuant to § 522(f), the Court denied the Rosenbergs’ request for an extension of time to file a supplemental letter brief in response to the Cor-ios’ motion, and granted that motion as “unopposed.”
The Rosenbergs timely appealed the Bankruptcy Court’s judgment to the District Court for the District of New Jersey. In September 2008, the District Court (1) affirmed the Bankruptcy Court’s order discharging the Corios’ personal liability (after concluding that In re Wedgewood did not apply), and (2) dismissed without prejudice the portion of the Rosenbergs’ appeal challenging the avoidance of the lien under § 522(f), as the Rosenbergs had failed to file a transcript of the hearing before the Bankruptcy Court. See In re Cono, No. 07-5864, 2008 WL 4372781, at *6 (D.N.J. Sept.22, 2008) (citing Fed. R. Bankr.P. 8001(a)).
The Rosenbergs subsequently filed the hearing transcript and moved to reopen the appeal. In January 2009, the District Court did so, but determined that the Bankruptcy Court had not abused its discretion in granting as unopposed the Cor-ios’ motion to avoid the hen. See In re Cono, No. 07-5864, 2009 WL 78157, at *3 (D.N.J. Jan.9, 2009) (noting that the Rosenbergs “neither discussed Section 522(f) in the[ir] letter brief, nor stated any opposition to — -or even acknowledgment of — [the Corios’] cross motion to avoid [the Rosenbergs’] judicial lien”). Accordingly, the District Court declined to consider the Rosenbergs’ argument regarding the applicability of § 522(f).
The Rosenbergs timely appealed, and challenge the District Court’s affirmance of the Bankruptcy Court’s order granting the Corios’ motion to avoid the judicial lien pursuant to § 522(f).3
II.
Though their briefs are not models of clarity, the Rosenbergs appear to argue that because the Bankruptcy Court granted them relief from the automatic stay and denied the Corios’ motion to reimpose the stay after the conversion to Chapter 7, the Court somehow lacked authority to avoid the judicial lien. Relying on our Court’s decision in In re Wedgewood, the Rosenbergs contend that the Bankruptcy Court *355“[could not] even reach the issue under 11 U.S.C. [§ ] 522(f) unless and until the Court reimpose[d] the automatic stay.”
We struggle (as did the Bankruptcy Court and the District Court) to make sense of the Rosenbergs’ reliance on In re Wedgewood, which concerned an automatic stay that had lapsed by operation of law (when the bankruptcy court failed to hold a hearing on a motion for relief from the automatic stay within the requisite time period). 878 F.2d at 698. We there held that, notwithstanding the lapse of the automatic stay, the bankruptcy court had authority to reinstate the stay by virtue of its injunctive powers under 11 U.S.C. § 105(a). Id. at 699-702. Here, it is undisputed that the Rosenbergs were granted relief from the automatic stay, and that the judgment and resulting judicial lien were not entered in violation of the stay. However, In re Wedgewood did not involve the avoidance of a judicial lien, and the Rosen-bergs have not explained how that decision supports their position that the avoidance of a lien under § 522(f) depends on whether a bankruptcy court has reinstated the automatic stay. In sum, In re Wedgewood is not on point and is thus unavailing to the Rosenbergs.
III.
Aside from their reliance on In re Wedgewood, the Rosenbergs also argue that the judicial lien was not avoidable because 11 U.S.C. § 522(f) does not apply to post-petition judicial liens. As noted, the District Court declined to consider this argument after determining that the Bankruptcy Court had not abused its discretion in granting the Corios’ motion as unopposed. See In re Kaiser Group Int’l Inc., 399 F.3d 558, 565 (3d Cir.2005) (noting the general rule that “when a party fails to raise an issue in the bankruptcy court, the issue is waived and may not be considered by the district court on appeal”). However, the Rosenbergs argue that both the District Court and the Bankruptcy Court erred in characterizing the Corios’ motion to avoid the lien as “unopposed,” given that the Rosenbergs “assertfed] in several separate places” in their letter brief in opposition to the Corios’ motion that “the judgment lien [was] not voidable.”
We agree with the District Court that the Bankruptcy Court did not abuse its discretion in denying the Rosenbergs an extension of time to respond to the Corios’ motion and granting that motion as unopposed. See In re Tower Air, 397 F.3d at 195; see also In re Am. Classic Voyages Co., 405 F.3d 127, 133 (3d Cir.2005) (reviewing bankruptcy court’s denial of an extension of time for creditor to file a proof of claim — including its determination that the creditor had not demonstrated “excusable neglect” for the delay, see Fed. R. Bankr.P. 9006(b)(1) — for abuse of discretion). As the Rosenbergs themselves acknowledge, they advanced no argument specific to § 522(f) in their letter brief; instead, they argued that the Bankruptcy Court could not “use any theory to void [the] judgment lien” because it “never reimposed the stay under Wedgewood.” In these circumstances, that the Rosenbergs timely raised one theory for why the judicial lien was not avoidable does not compel the conclusion that the Bankruptcy Court abused its discretion by declining to consider their alternative theory, raised for the first time during oral argument. Cf. Pichler v. UNITE, 542 F.3d 380, 396 n. 19 (3d Cir.2008) (arguments raised for the first time during oral argument are deemed waived).
Even assuming that the Bankruptcy Court abused its discretion in granting the Corios’ motion as unopposed, the Rosenbergs’ argument nonetheless fails. Section 522(f) provides, in pertinent part:
[T]he debtor may avoid the fixing of a lien on an interest of the debtor in prop*356erty to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is—
(A) a judicial lien[.]
11 U.S.C. § 522(f)(1)(A). Though unclear, the Rosenbergs appear to argue that § 522(f) is inapplicable to their judicial lien because (1) the Corios’ entitlement to an exemption must be determined as of the date of filing (rather than the date of conversion), and (2) the judicial lien did not exist at the time the Corios filed for bankruptcy, and thus could not “impair”4 the Corios’ exemption in their property.
We disagree. The rule that a debtor’s entitlement to an exemption is determined as of the filing date simply means that a debtor generally may not claim an exemption in property that he did not own on the filing date. See 11 U.S.C. § 348(f)(1)(A); see also In re Stamm, 222 F.3d 216, 218 (5th Cir.2000) (“[Pjroperty acquired after the Chapter 13 filing and before discharge under Chapter 7 is not part of the eonvei't-ed estate.”). Here, it is undisputed that the Corios had an interest in their home at all relevant times — i.e., when they filed for bankruptcy, when they convei-ted them case, and when the judicial lien attached to the property. Cf. Farrey v. Sanderfoot, 500 U.S. 291, 296, 111 S.Ct. 1825, 114 L.Ed.2d 337 (1991) (“[Ujnless the debtor had the property interest to which the lien attached at some point before the lien attached to that interest, he or she cannot avoid the fixing of the lien under the tex-ms of § 522(f)(1).”) (emphasis in oi-iginal). Thus, the Coxios were entitled to claim an exemption in their home under § 522(b) and seek to avoid the lien on that property under § 522(f). In any event, the Rosen-bergs have cited no authority — and we are aware of none — -holding that only a judicial lien that exists as of the filing date can be avoided under § 522(f). Cf. In re Vaughan, 311 B.R. 573, 580 (10th Cm. BAP 2004) (rejecting argument that § 522(f) “cannot be utilized by a debtor to avoid a lien that arose post-petition,” and noting that, “[b]y its plain language, [§ 522(f)] contains no qualifications as to when the lien must attach”).
Finally, to the extent the Rosenbergs mean to argue that their judicial lien is not avoidable because it arose from a post-petition claim, we i'eject that argument as well. Though the Rosenbergs’ claim arose after the Corios filed for bankruptcy, the claim is treated as a pre-petition claim once the Corios converted their case. See 11 U.S.C. § 348(d) (“A claim against the estate or the debtor that arises after the order for relief but before conversion in a case that is converted under [Chapter 13] ... shall be treated for all purposes as if such claim had aidsen immediately before the date of the filing of the petition.”) (emphasis added); see also 3 Collier on Bankruptcy ¶ 348.05, at 348-15 (Alan N. Resnick & Henry J. Sommer eds., 15th ed. rev.2009) (noting that § 348(d) “pimvides for special treatment of claims that arise dui’ing a case under chapter 11, 12, or 13 before the case is converted to another chapter”). Thus, the fact that the Rosenbergs’ claim arose after the Corios’ initial bankruptcy petition does not render the resulting judicial lien unavoidable.
* * * * =!= *
*357In this context, we affirm the District Court’s judgment.
. The District. Court had jurisdiction under 28 U.S.C. § 158(a)(3) over the appeal from the Bankruptcy Court, which had jurisdiction under 28 U.S.C. § 157(b). We have jurisdiction under 28 U.S.C. §§ 158(d) and 1291. Because the District Court sat as an appellate court to review the Bankruptcy Court, we review its legal determinations de novo, its factual findings for clear error, and its exercises of discretion for abuse thereof. In re Tower Air, Inc., 397 F.3d 191, 195 (3d Cir.2005) (citing In re Engel, 124 F.3d 567, 571 (3d Cir.1997)).
. It is not clear from the record how the parties arrived at this amount.
. The Rosenbergs do not challenge the District Court's affirmance of the Bankruptcy Court’s order discharging the Corios' personal liability.
. A lien “impairs” an exemption for purposes of § 522(0 to the extent that the sum of the lien, all other liens on the property, and the amount of the exemption that the debtor could claim if there were no liens on the property, "exceeds the value that the debtor's interest in the property would have in the absence of any liens.” 11 U.S.C. § 522(f)(2)(A). Though die Rosenbergs contend that § 522(0 does not apply to post-petition judicial liens, they do not otherwise dispute that their judicial lien "impairs” the Corios' exemption under this calculus. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478766/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Morer Lee appeals the district court’s order dismissing his civil complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Lee v. Mallory, No. 1:09-cv-02868-RDB, 2009 WL 3806774 (D.Md. Nov. 12, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before *365the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478666/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shelley Fry and Cynthia Cowan appeal the district court’s order granting Prince George’s County, Maryland, summary judgment on their hostile work environment racial harassment and retaliation claims, brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 (2006), as well as its order granting in part and denying in part their Fed.R.Civ.P. 59(e) motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s orders. See Fry v. Prince George’s County, MD, No. 8:05-ev-03150-AW (D. Md. Mar. 14, 2008; filed .Nov. 18, 2008, entered Nov. 19, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478669/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William G. Thorne appeals the district court’s order granting Defendants’ summary judgment motion on his 42 U.S.C. § 1983 (2006) claims against them. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s order. See Thorne v. Hale, No. 1:08-cv-00601-JCC-TRJ, 2009 WL 3733344 (E.D. Va. filed Oct. 29, 2009; entered Oct. 30, 2009). .We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478671/ | Affii'med by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donald Leon Smiley appeals the district court’s order dismissing his civil complaint for failure to state a claim on which relief may be granted. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Smiley v. Parker, No. 2:09-cv-00551-RAJ-FBS (E.D.Va. Nov. 6, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478674/ | PER CURIAM: *
Ronald Charles May, Texas prisoner # 1510892, was convicted of possession of a controlled substance in a drug-free zone. In the instant 42 U.S.C. § 1983 civil rights complaint, May alleged that the Texas Board of Pardons and Paroles violated his constitutional rights by determining that he is not eligible for parole or mandatory release. The district court determined that May had not stated a claim as required by 28 U.S.C. § 1915A(b)(l) and dismissed the complaint. May argues, inter alia, that he is eligible for good time credits, parole, and mandatory supervised release, and that it is unconstitutional to deprive him of these rights.
A prisoner’s civil rights complaint should be dismissed if it is frivolous, malicious, or fails to state a claim upon which relief may be granted. See § 1915A(b)(l). This court reviews de novo a district court’s § 1915A dismissal for failure to state a claim. See Ruiz v. United States, 160 F.3d 273, 275 (5th Cir.1998). Although pro se briefs are liberally construed, arguments that are inadequately briefed are considered abandoned. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993); Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.1987). May’s argument is conclusional and does not address the district court’s decision that under Tex. Health & Safety Code Ann. § 481.134 (Vernon 2008), and Tex. Gov’t Code Ann. §§ 508.145(e), 508.149(a)(14) (Vernon 2008), May is not eligible for mandatory supervision and will not be eligible for parole consideration before serving his *552sentence. Moreover, as the district court concluded, May is essentially challenging the terms of his sentence and his conviction under the Texas drug-free zone statutory scheme. He thus is seeking a speedier release from custody. No prisoner has a constitutional right to be released before the expiration of his sentence. See Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). A challenge to the terms of imprisonment is properly brought in a 28 U.S.C. § 2254 proceeding and is not cognizable in § 1983 proceedings. See Allison v. Kyle, 66 F.3d 71, 73 (5th Cir.1995).
May’s appeal is without arguable merit. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.1983). It is therefore dismissed as frivolous. 5th Cir. R. 42.2. The district court’s dismissal counts as a strike under 28 U.S.C. § 1915(g), as does the dismissal of this appeal. See § 1915(g); Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). May has one prior strike. See May v. UTMB Medical Branch, No. H-08-31062 (S.D.Tex.2008). Because May has now accumulated three strikes, he is barred from proceeding in forma pauperis in any civil action or appeal filed while incarcerated or detained in any facility unless he is under imminent danger of seri- ' ous physical injury. See § 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; 28 U.S.C. § 1915(g) BAR IMPOSED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478678/ | ORDER
Unexpected complications during a dental procedure left Wisconsin inmate Cornelius Maddox in significant pain. He filed suit under 42 U.S.C. § 1983 against six current or former employees of the Wisconsin Department of Corrections, claiming that delays in treatment and pain management caused him needless suffering in violation of the Eighth Amendment. The district court granted summary judgment in favor of the defendants. We affirm.
The relevant facts, which we construe in a light favorable to Maddox, begin with what was supposed to be a routine tooth extraction. Dr. Donald Jones, the prison’s resident dentist, attempted to remove one of Maddox’s wisdom teeth but stopped short when he caught sight of the nerve roots, which he said were splayed across the tooth like a “grappling hook.” Extraction, he determined, could damage the jaw, so Dr. Jones cancelled the procedure and referred Maddox to an oral surgeon. For pain or swelling in the meantime, he prescribed Ibuprofen.
The parties dispute the condition in which Dr. Jones left the site of the failed extraction. There is agreement that he cut open the gum tissue and loosened the tooth, but where Dr. Jones insists he did not use a drill during the procedure, Maddox says he heard a drilling device and that he left with a large hole in his tooth, his gum tissue still exposed. Maddox claims that the area around his tooth grew infected within four days of the procedure. He provides details in an affidavit, describing extreme pain, swelling, and pus. His affidavit also describes a foul odor emanating from his mouth, further evidence in his mind that the site was infected. Several inmates who observed Maddox during this period submitted affidavits describing similar symptoms.
On July 17, 2006, four days after the procedure, Maddox filed a Dental Service Request (DSR) complaining that his mouth was infected and requesting emergency treatment. Dr. Jones was off work from July 17 to July 24, and it was the prison’s policy at the time that only dentists could review DSRs.1 As a result, though it was received and time stamped the following day, the DSR was not prioritized, and Maddox did not receive a formal response from the dental unit until Dr. Jones returned on July 24, at which time an appointment was scheduled for the next day.
Meanwhile, Maddox complained about his condition to Sgt. Laufenberg, a member of the prison’s security staff. He says he saw Sgt. Laufenberg use the phone to relay his complaints to the dental department and the health services unit. Based on these calls, Maddox contends that his condition and request for immediate medical attention were known by three members of the medical staff — Brooke Bodart, a dental hygienist at the prison; Stephanie Sequin, a former nurse at the prison, now deceased; and Richard Heidorn, a physician at the prison.
When Dr. Jones next saw Maddox on July 25, he acknowledged that the surgery site had been healing slowly, but concluded it was not infected. To advance the heal*719ing, he prescribed penicillin, which by Maddox’s own account was successful, though Maddox claims he remained in pain until after his eventual oral surgery on August 11, when he was prescribed stronger pain medication.
Maddox’s Eighth Amendment claim survived initial screening but was ultimately defeated on summary judgment. The district court had allowed Maddox to proceed against Jones, Sequin, and Bodart on the theory that they knowingly deprived him of medical attention; and against Jean-anne Zwiers, the director of the prison’s Health Services Unit, and William Pollard, the warden, on the theory that they had personal knowledge that he was experiencing pain and failed to intervene. The court, however, went on to grant summary judgment in favor of all of the defendants. The court’s ruling rested primarily on its conclusion that Maddox had not shown that he suffered a serious injury by the delay in dental treatment. It reasoned that if there was no infection when Dr. Jones inspected the surgical site on July 24, there likely was no infection when Maddox complained to authorities a week earlier. Without proof of an infection, the court explained, Maddox could not show that prison officials disregarded a serious risk to his health.
On appeal, Maddox first challenges the district court’s conclusion that he was never in serious need of medical attention. Resting on his affidavits and those of his fellow inmates, he argues that a fact question exists over whether the pain in his mouth, coupled with a potential infection, amounted to an objectively serious medical need. His position is defensible, see Board v. Farnham, 394 F.3d 469, 480 (7th Cir. 2005) (affirming summary judgment for inmate who submitted evidence that he suffered dental problems after being deprived of toothpaste for three weeks); Hartsfield v. Colburn, 371 F.3d 454, 457-58 (8th Cir.2004) (reversing summary judgment in favor of jail physician and nurse where evidence showed six-week delay in dental treatment caused pain and infection); Boyd v. Knox, 47 F.3d 966, 969 (8th Cir.1995) (vacating grant of summary judgment for dentist who waited three weeks before referring inmate with infected wisdom tooth), and we are not persuaded by the district court’s gratuitous comment that infections “would not establish (or even hint at) deliberate indifference [because they] occur all the time, and the United States Constitution was not drafted and ratified in order to prevent them.” Countless cases says otherwise. See E.g., Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th Cir.2009) (prisoner could state an Eighth Amendment claim against hospital officials by alleging that they failed to treat his arm, resulting in severe pain and infection); Gil v. Reed, 381 F.3d 649, 662 (7th Cir.2004) (reversing summary judgment in favor of physician who failed to dispense antibiotics to prisoner who needed the drugs to treat an infection).
But even if we were to assume that Maddox’s condition was sufficiently serious, he still must meet his burden of production on the issue of deliberate indifference. Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir.2010). To demonstrate deliberate indifference, he must show that the defendants were subjectively aware of a serious risk to his health and either knowingly or recklessly disregarded it. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir.2009).
We turn first to Maddox’s claim against Dr. Jones. Maddox renews his argument that the condition in which Dr. Jones left his tooth is evidence from which a trier of fact could infer deliberate indifference. It was reckless, he contends, for *720Dr. Jones to send him away with an exposed tooth and no means of countering a potential infection. Worse yet, he points out, Dr. Jones left for a week knowing that his patients would not have access to dental treatment in his absence.
The record evidence is insufficient to support an inference that Dr. Jones consciously disregarded a substantial risk to Maddox’s health. Although Maddox contends that his untreated tooth condition should have alerted Dr. Jones to the seriousness of the situation, an official’s failure to address an apparent risk of harm does not give rise to an Eighth Amendment violation. See Farmer v. Brennan, 511 U.S. 825, 838, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Anderson v. Cornejo, 355 F.3d 1021, 1027 (7th Cir.2004). Instead, “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 838, 114 S.Ct. 1970. Nor does the record suggest that a risk of serious harm was apparent from the outset. Maddox admits that his tooth was not infected when he left Dr. Jones’s office on July 13, and the record does not reflect that he complained of pain until four days later. By then, however, Dr. Jones had left for the week, and he did not receive Maddox’s request for treatment until he returned. By Maddox’s own account, Dr. Jones upon reviewing the DSR promptly scheduled an appointment and treated Maddox the following day. Maddox’s argument that Dr. Jones should have prescribed antibiotics beforehand is at best a claim of malpractice, which does not violate the Eighth Amendment. Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir.2006).
Maddox also challenges the district court’s grant of summary judgment in favor of Dr. Heidorn, Nurse Sequin, and dental hygienist Bodart. He argues that all three officials were aware of a serious risk to his health and yet failed to take steps to address it. The primary evidence he offers against the three officials is his own affidavit recounting Sgt. Laufenberg’s assurance that his complaints were relayed to employees in the dental and health units. But Sgt. Laufenberg’s representations to Maddox about what information was relayed in his phone conversations are inadmissable hearsay and may not be relied upon to defeat summary judgment.2 Fed.R.Evid. 802; Haywood v. Lucent Tech., Inc., 323 F.3d 524, 533 (7th Cir. 2003); see also Collins v. Seeman, 462 F.3d 757, 760 n. 1 (7th Cir.2006). Maddox tries to sidestep this evidentiary hurdle by arguing that he “observed” Sgt. Laufenberg on the phone with medical officials, but observations cannot verify the contents of a phone conversation.
Maddox argues that there is other evidence in the record that raises a fact question about whether Heidorn and Sequin harbored culpable states of mind. Regarding Nurse Sequin, Maddox refers to, somewhat ambiguously, a medical record reflecting that she refilled his Ibuprofen prescription two days after he first requested medical attention. But from this it cannot be inferred that Nurse Sequin knew the reason he needed Ibuprofen, or, more importantly, that the Ibupro*721fen would be inadequate. See Collins, 462 F.3d at 761. For much the same reason, Maddox cannot show deliberate indifference on the part of Dr. Heidorn, whose only connection to this case is a form he completed on July 17, 2006, referring Maddox to an oral surgeon. The form does not specify the purpose of the appointment and provides no details suggesting that Dr. Heidorn knew Maddox was in serious pain.
As for hygienist Bodart, Maddox argues that the district court should have inferred deliberate indifference from a time stamp on his DSR dated July 18, 2006, presumably a day she was on call. As Maddox tells it, Bodart received the DSR, stamped it, and then filed it away without notifying health services. This, he argues, was sufficient to create a question of fact about her culpability. We disagree. Maddox does not dispute that under the policy in place at the time, only a dentist could schedule DSRs and assign them priority. Bodart could stamp incoming DSRs to verify receipt, but she had no authority to review them. Absent any evidence that she reviewed the DSR (in contravention of prison policy), the limited scope of her authority negates any inference of her culpability. See Norfleet, 439 F.3d at 397 (low-level employee’s adherence to prison policy concerning pain relievers could not support an inference of deliberate indifference); see also Camberos v. Branstad, 73 F.3d 174,177 (8th Cir.1995).
Maddox’s claims against Zwier and Pollard fare no better. Even if he had evidence of constitutional violations on the part of the prison medical staff, Zwier and Pollard could be held liable only if they knew Maddox’s condition was serious and yet disregarded it. Steidl v. Fermon, 494 F.3d 623, 631 (7th Cir.2007); Jones v. City of Chicago, 856 F.2d 985, 992-93 (7th Cir. 1988). But Zwier asserted in an affidavit that her only involvement in this matter was being copied on an internal grievance on July 27. By that point, Maddox had been treated by Dr. Jones, and Zwier’s follow-up inquiries with Nurse Sequin did not reveal a need for further intervention. As for Pollard, nothing in the record suggests that he was aware of Maddox, let alone his health status.
AFFIRMED.
. A policy vesting dentists with sole authority to review dental service requests would seem to invite disaster where, as here, an extended period of time passes with no dentist on site. Although the prison avoided a constitutional violation on this record, the consequences could have been far more serious.
. The hearsay problem is worse than Maddox lets on to. He claims that Sgt. Laufenberg "relayed” his complaints to health officials, but the prison’s complaint examiner reported, and Maddox does not dispute, that Sgt. Lau-fenberg was actually working through an intermediary, Officer Kennedy. Officer Kennedy was the official in contact with health services, and Maddox would need his statements, along with Sgt. Laufenberg’s, in order to demonstrate which officials knew what. See United States v. Poison, 285 F.3d 563, 567 (7th Cir.2002). ’ | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478680/ | ORDER
Tonicia Boston sued Memorial Medical Center under the Americans with Disabilities Act, claiming that her former employer failed to accommodate her disability. See 42 U.S.C. § 12112(a), (b)(5)(A). The district court concluded that Boston was not disabled under the ADA and granted summary judgment against her; in the alternative, the district court reasoned, Boston had not shown that Memorial failed to accommodate her disability. Boston appeals, but we affirm the judgment. Although we think that Boston presented sufficient evidence to survive summary judgment on the question whether she is disabled under the ADA, we agree with the district court that she did not show that Memorial refused to accommodate her disability.
Boston was working for Memorial as a registered nurse when she suffered an on-the-job injury that resulted in a chronic back condition. As a result, she testified at her deposition, she could bathe by herself only “occasionally.” Keeping in mind that we are reviewing a grant of summary judgment, we construe the somewhat ambiguous deposition testimony in the light reasonably most favorable to Boston as the non-moving party. At least a few times per week she required the assistance of her mother or young daughter, she explained, and “occasionally” she would not be able to bathe at all. Likewise, Boston said, she was able to prepare her own meals only once or twice a week and other*723wise relied on her mother. And only rarely was she able to clean her house, Boston complained. But, she admitted, she could perform some daily chores without any assistance at all, including dressing herself, driving to work, and walking from the parking lot to her office.
Memorial concluded that a registered nurse’s duties were too physically demanding for someone with Boston’s condition and granted her request to work as a clinical case manager instead. In January 2005, Boston began to train for her new position, which required a lot of sitting. The constant sitting aggravated her condition, so she asked Julie Meyers, her supervisor, if she could take occasional breaks. Meyers apparently did not grant Boston’s request. In March Boston asked Meyers if she could work fewer hours during an upcoming shift because her back was acting up. Meyers told Boston that, unless she was sick, she needed to work the hours she was scheduled.
Memorial issued a written warning regarding Boston’s performance the following week. The warning identified four areas of concern — Boston took too many breaks, called in sick excessively, communicated uncivilly with other employees, and often did not follow proper procedures. In response to Memorial’s accusation that she took too many breaks, Boston submitted notes from two doctors explaining that her chronic back condition required an accommodation. One doctor advised that, once every hour or two, Boston should stand and move around for about five minutes; the other doctor advised that Boston should avoid sitting for more than one to two hours at a time. A Memorial employee wrote “OK” on each note, and Memorial did not discipline Boston again. Indeed, Boston testified at her deposition that she made “a good effort” to comply with her doctors’ instructions. A few weeks later, Meyers told Boston that she could begin working eight-hour shifts instead of twelve-hour shifts. However, after submitting her doctors’ notes, Boston’s attendance plummeted — she called in sick fourteen times and worked only twelve shifts before resigning at the beginning of June.
Boston sued, alleging that Memorial ran afoul of the ADA by failing to accommodate her disability. See 42 U.S.C. § 12112(a), (b)(5)(A). The district court granted summary judgment for Memorial, concluding that Boston was not disabled under the ADA because her physical impairment did not substantially limit a major life activity. See id. § 12102(1)(A). Boston had argued that she was substantially limited in the major life activities of caring for herself and performing manual tasks. See 29 C.F.R. § 1630.2(i), (j). But the district court thought that Boston’s case was indistinguishable from Squibb v. Memorial Medical Center, 497 F.3d 775, 784 (7th Cir.2007), which held that a plaintiff who could only occasionally cook, clean, and shop for groceries — but could drive, bathe, brush her teeth, and dress herself— was not substantially limited in the major life activity of caring for herself. The district court reasoned in the alternative that, even if Boston were disabled, she had not shown that Memorial failed to accommodate her disability.
Boston argues on appeal'that she is disabled under the ADA; Squibb is distinguishable, she says, because, unlike the plaintiff in that case, she is only occasionally capable of bathing herself. We think she has presented sufficient evidence that she is disabled at least to survive a motion for summary judgment. The Supreme Court has identified bathing in particular as an activity that is “of central importance to people’s daily lives” and that a court must consider when assessing whether a plaintiff is disabled under the ADA. See *724Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 202, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002). In Squibb we examined the daily tasks that the plaintiff could perform in light of the daily tasks she could not perform; our evaluation convinced us that, given what she could do, she was not severely restricted in the major life activity of caring for herself. 497 F.3d at 784. But in view of modern norms in American culture, the balance changes significantly when an employee is not able to bathe on her own but needs help or must go without. The relevant deposition testimony is somewhat ambiguous, but as the non-moving party, Boston is entitled to the benefit of reasonable doubts. Given the individualized inquiry that the ADA requires, see EEOC v. Lee’s Log Cabin, Inc., 546 F.3d 438, 442 (7th Cir.2008), Memorial was not entitled to summary judgment on the ground that Boston was not a qualified individual with a disability.
But Boston’s claim still fails because she has not shown that Memorial failed to accommodate, her. Memorial first accommodated her back condition by offering her a new job that was not as physically demanding as her old job. See Mays v. Principi, 301 F.3d 866, 871, 872 (7th Cir. 2002). When even the less-demanding duties of her new position caused her condition to act up, Memorial responded to Boston’s request for an additional accommodation by permitting her to take more frequent breaks. Contrary to Boston’s assertions in her brief, there is no evidence in the record that Memorial refused to permit these additional breaks once it understood the medical necessity or that Boston thought she would jeopardize her job by taking the breaks and so suffered in silence instead. In fact Boston acknowledged in her deposition testimony that she made “a good effort” to take more frequent breaks at work and was not disciplined by Memorial after she gave Meyers a copy of her doctors’ orders.
Boston argues that Memorial did not engage her in the “interactive process” contemplated by 29 C.F.R. § 1630.2(o )(3) to “identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” But even if Boston is correct, Memorial’s failure does not, by itself, entitle her to relief. See Ozlowski v. Henderson, 237 F.3d 837, 840 (7th Cir.2001). She must also show the existence of a reasonable accommodation that, because there was no interactive process, she did not obtain. See Mays, 301 F.3d at 870; Ozlowski, 237 F.3d at 840. The only accommodation she has identified, however,' is taking more frequent breaks. The undisputed evidence in the record shows that Memorial permitted these breaks, and Boston nevertheless resigned after a few more weeks of work. If Memorial erred in some way in handling Boston’s request for an accommodation, and we do not believe that it did, any such error was harmless. See Mays, 301 F.3d at 871.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478682/ | ORDER
This appeal centers on a factual dispute over the location of a trash can. Darrell-Jackson pleaded guilty to possession of cocaine with intent to distribute, 21 U.S.C § 841(a)(1), and was sentenced to 188 months’ imprisonment. Jackson appeals, challenging the district court’s denial of his motion to suppress. In the motion Jackson argued that the police violated the Fourth Amendment by searching through a trash can placed next to the side door of his house. Because the district court did not clearly err in crediting police testimony that the can was on the curb awaiting pickup, we uphold the ruling and affirm Jackson’s conviction.
After receiving a tip that Jackson was dealing crack and powder cocaine from his home, Detectives Jack Cain and Earl McDonald of the Allen County Police Department conducted a pre-dawn trash pickup in front of Jackson’s house. In Jackson’s garbage they found a rock of crack cocaine, plastic baggies and razor blades with cocaine residue, and a receipt for the purchase of ammunition. Cain obtained a search warrant for Jackson’s home; the search led to the recovery of approximately 23 grams of crack cocaine.
Following his arrest Jackson filed a motion to suppress the evidence found in the search. The district court held a hearing at which Jackson, his neighbor to the east Leroy McGraw, McDonald, and Cain testified. McGraw explained that trash was picked up in the neighborhood on Thursday mornings and that his sons were supposed to take out the garbage. He testified that on those Thursday mornings when he took out the trash, he sometimes saw Jackson putting his trash out, but he never saw Jackson putting his trash out on Wednesday night. McGraw admitted, however, that he did not really monitor Jackson’s actions.
*726Jackson testified that he always kept his trash can on the side of his house and did not move it to the curb until Thursday morning after he finished taking his children to school. He admitted that he had several prior convictions and arrests, including convictions for cocaine possession and false informing. And he testified inconsistently about when his brother lived with him after being released from prison and the number of times that he had seen the realtor for the home to his west put out a trash can.
McDonald and Cain both testified that at 2:45 a.m., when they picked up trash from Jackson’s house, the trash can was on a grassy area between the sidewalk and the curb. Both also testified that they had tried previously to go through Jackson’s trash but had been thwarted by the presence of people or lights in the area. McDonald testified that several times they noticed two trash cans put out, one presumably for Jackson and the other for the house to the west; Cain said that on the night they seized the trash there was another can out for the house next door.
In denying Jackson’s motion to suppress, the district judge found the detectives’ testimony credible' and assigned it great weight because it was detailed, consistent, and partially corroborated by the defendant’s testimony about the realtor next door leaving trash cans out. The judge also found McGraw credible but gave his testimony less weight because he admitted that his sons took the trash out most of the time and that he was not monitoring the defendant’s actions. Further, the judge found Jackson not credible based on his prior conviction for false informing and his inconsistent testimony. Accordingly, the court concluded that Jackson’s trash can had been by the curb on the night of the police pickup, so Jackson did not have a reasonable expectation of privacy in the trash, which the police had therefore lawfully collected. See California v. Greenwood, 486 U.S. 35, 37, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988).
On appeal Jackson reasserts his argument, based on his and McGraw’s testimony at the suppression hearing, that the trash can was next to his house at the time the police took his garbage, so the pickup violated the Fourth Amendment. Jackson’s argument could have merit if the district court had found that the can was next to his home. See United States v. Hedrick, 922 F.2d 396, 400 (7th Cir.1991). But the district court specifically credited the testimony of Cain and McDonald that the can was at the curb when they went through it, and Jackson does not argue that the court’s credibility assessment was flawed.
Even if Jackson did contest the district court’s credibility determination, the court’s conclusions were not clearly erroneous. The district judge was entitled to give the detectives’ testimony more weight because it was detailed and consistent. See United States v. Conner, 583 F.3d 1011, 1023 (7th Cir.2009); United States v. Noble, 246 F.3d 946, 953 (7th Cir.2001). Likewise the judge did not commit clear error by focusing on McGraw’s admitted lack of attention towards Jackson’s activities and limited opportunity to observe Jackson’s trash habits. See United States v. Gallo-Moreno, 584 F.3d 751, 757-58 (7th Cir.2009) (noting witness’s “lengthy opportunity to observe” and “high degree of attention” in upholding identification procedure). Nor did the judge clearly err in factoring Jackson’s inconsistent testimony and false informing conviction into her credibility assessment. See United States v. Watson, 87 F.3d 927, 931 (7th Cir.1996); *727United States v. Thomas, 11 F.3d 1392, 1397 n. 2 (7th Cir.1993).
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478684/ | *736ORDER
Jermel Pope pleaded guilty to transporting a minor in interstate commerce while intending that she engage in prostitution, see 18 U.S.C. § 2421, and was sentenced to 100 months’ imprisonment. He argues on appeal that his below-guidelines sentence is proeedurally unsound because the district court did not adequately respond to his argument that he deserved an even lower sentence. Although he did not need to, the district court did respond to Pope’s plea for leniency and granted it to a reasonable extent We affirm the judgment.
Pope’s victim was only about 40 days shy of her eighteenth birthday when he picked her up at her parents’ house in Wisconsin and drove her to Illinois to work as a prostitute. Pope photographed his victim in sexually explicit poses and posted those photographs on the internet. At least 20 men responded over a two-week period, and Pope arranged for them to receive sexual services from his victim in exchange for money. The victim wrote Pope that she loved him; he replied that she must remain under his authority and warned her that he was very “controlling” and would “put a chain around [her] neck ... if thats what have [sic] to be done.”
Pope’s sentencing exposure under the guidelines increased considerably because his victim was a minor. The district court used U.S.S.G. § 2Gl.S(a)(4) to set Pope’s base offense level at 24. The district court added two levels because Pope used a computer to solicit customers for his victim, see U.S.S.G. § 2G1.3(b)(3)(B), two more levels because the offense involved a commercial sex act, see id. § 2G1.3(b)(4)(B), and two additional levels because Pope played a supervisory role in the offense, see id. § 3Bl.l(c). Finally, the district court decreased Pope’s offense level by three levels because he accepted responsibility. See U.S.S.G. § 3El.l(a). Pope’s offense level of 27 and his criminal history category of VI produced a guidelines range of 130 to 162 months’ imprisonment, which was above the statutory maximum sentence of 120 months, see 18 U.S.C. § 2421. The government wanted Pope sentenced to the statutory maximum.
Pope argued at sentencing that his guidelines range greatly overstated the seriousness of his offense; he requested a 46-month sentence instead. Had he made his trip to Wisconsin a mere 40 days later, Pope maintained, his victim no longer would have been a minor, so the district court would have used U.S.S.G. § 2Gl.l(a)(2) to set his base offense level at 14. No adjustments would have been available under that guideline for Pope’s use of a computer or because the offense involved a commercial sex act. After factoring in his supervisory role and acceptance of responsibility, Pope’s offense level probably would have been 13 and his guidelines range only 33 to 41 months.
The district court agreed with Pope that, in light of his victim’s age and the sentencing consequences that followed, “a small adjustment” would be proper under 18 U.S.C. § 3553(a)(2)(A): “I am ... aware that it was a month and a half, and it would have been a much less serious crime. That doesn’t change the seriousness of the crime. It does seem to me that 3553 does provide some basis for making a small adjustment.” But the district court did not go as low as Pope requested. Although Pope’s victim was almost 18, the district court explained, her other characteristics enhanced the seriousness of Pope’s offense. She was a “mentally abused,” poorly educated “runaway” who had fallen “in love” with Pope, the district court observed, and Pope took advantage by threatening and exploiting her. After reflecting on these competing considerations, the district court sentenced Pope to 100 months’ imprisonment.
*737Pope argues on appeal that his sentence is procedurally unsound because the district court did not conduct a meaningful analysis of his request for a 46-month sentence in light of the sentencing factors enumerated in 18 U.S.C. § 3553(a) and failed to explain why it chose a 100-month sentence instead. A district court should respond to a defendant’s nonfrivolous argument for a below-guidelines sentence, although just how much explanation is required varies depending on the circumstances. Rita v. United States, 551 U.S. 338, 356-58, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Miranda, 505 F.3d 785, 795-96 (7th Cir.2007). Whether a defendant’s sentence is procedurally sound is a question for de novo review. United States v. Are, 590 F.3d 499, 530 (7th Cir.2009).
Despite his insistence otherwise, the district court did respond to his argument that he deserved a below-guidelines sentence. What is more, the district court actually granted his request to a reasonable extent by sentencing him below his guidelines range and below the statutory maximum.
The district court reached this conclusion by conducting a meaningful analysis of the § 3553(a) factors. At sentencing, Pope focused his argument on the specific statutory command that a sentence should adequately reflect the seriousness of the offense. After contemplating how that statutory goal applied to the facts of Pope’s case, the district court granted Pope a below-guidelines sentence because his victim was almost 18. Pope’s criticism that the district court neglected to mention all the § 3553(a) factors in checklist fashion is for naught because the statute does not require a mechanical run-through of each sentencing factor. See United States v. Perez, 581 F.3d 539, 548 (7th Cir.2009).
The district court also adequately explained why it rejected Pope’s proposed 46-month sentence and chose to sentence him to 100 months’ imprisonment instead. Recognizing that Pope’s guidelines range of 130 to 162 months would have plummeted to 33 to 41 months had the victim not been a scant 40 days away from her eighteenth birthday, the district court was nevertheless mindful that the sentencing guidelines express a special concern for commercial-sex offenders who prey on young, impressionable victims. See U.S.S.G. § 2G1.3. And looking closely at the relationship between Pope and his victim, the district court saw a manipulative man threatening and sexually exploiting a vulnerable girl who, although she was almost 18, was also a mentally abused, poorly educated, and desperate runaway. These considerations convinced the district court that the crime was indeed serious— more serious than Pope’s proposed sentence reflected — and that a 100-month sentence was warranted instead.1 The sentence was therefore procedurally sound.
Reading between the lines, Pope’s real objection seems to be that his sentence is substantively unreasonable — that the district court’s application of the § 3553(a) factors to the facts of his case was an abuse of discretion. See Are, 590 F.3d at 530. But Pope has not developed such a challenge. Nor has he even attempted to surmount the presumption of reasonableness that attaches to a below-guidelines *738sentence. See United States v. Poetz, 582 F.3d 835, 837 (7th Cir.2009).
AFFIRMED.
. The government also asked the district court to take into consideration Pope’s extensive criminal history, noting that, by the age of 23, he had "racked up 19 convictions and 17 criminal history points, a criminal history that normally would take someone a lifetime, if not more, to gather.” | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478688/ | [UNPUBLISHED]
PER CURIAM.
Timothy Wallace appeals the district court’s1 denial of his motion for an order directing the court clerk to send him a cassette tape. Having carefully reviewed the record, we find no basis for reversal. Accordingly, we affirm. See 8th Cir. R. 47B.
. The Honorable Carol E. Jackson, United States District Judge for the Eastern District of Missouri. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478667/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shelley Fry and Cynthia Cowan appeal the district court’s order granting Prince George’s County, Maryland, summary judgment on their hostile work environment racial harassment and retaliation claims, brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 (2006), as well as its order granting in part and denying in part their Fed.R.Civ.P. 59(e) motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s orders. See Fry v. Prince George’s County, MD, No. 8:05-ev-03150-AW (D. Md. Mar. 14, 2008; filed .Nov. 18, 2008, entered Nov. 19, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478672/ | PER CURIAM: *
The Federal Public Defender appointed to represent Koy Wayne Dodd has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Dodd has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous is*455sue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478677/ | ORDER
Unexpected complications during a dental procedure left Wisconsin inmate Cornelius Maddox in significant pain. He filed suit under 42 U.S.C. § 1983 against six current or former employees of the Wisconsin Department of Corrections, claiming that delays in treatment and pain management caused him needless suffering in violation of the Eighth Amendment. The district court granted summary judgment in favor of the defendants. We affirm.
The relevant facts, which we construe in a light favorable to Maddox, begin with what was supposed to be a routine tooth extraction. Dr. Donald Jones, the prison’s resident dentist, attempted to remove one of Maddox’s wisdom teeth but stopped short when he caught sight of the nerve roots, which he said were splayed across the tooth like a “grappling hook.” Extraction, he determined, could damage the jaw, so Dr. Jones cancelled the procedure and referred Maddox to an oral surgeon. For pain or swelling in the meantime, he prescribed Ibuprofen.
The parties dispute the condition in which Dr. Jones left the site of the failed extraction. There is agreement that he cut open the gum tissue and loosened the tooth, but where Dr. Jones insists he did not use a drill during the procedure, Maddox says he heard a drilling device and that he left with a large hole in his tooth, his gum tissue still exposed. Maddox claims that the area around his tooth grew infected within four days of the procedure. He provides details in an affidavit, describing extreme pain, swelling, and pus. His affidavit also describes a foul odor emanating from his mouth, further evidence in his mind that the site was infected. Several inmates who observed Maddox during this period submitted affidavits describing similar symptoms.
On July 17, 2006, four days after the procedure, Maddox filed a Dental Service Request (DSR) complaining that his mouth was infected and requesting emergency treatment. Dr. Jones was off work from July 17 to July 24, and it was the prison’s policy at the time that only dentists could review DSRs.1 As a result, though it was received and time stamped the following day, the DSR was not prioritized, and Maddox did not receive a formal response from the dental unit until Dr. Jones returned on July 24, at which time an appointment was scheduled for the next day.
Meanwhile, Maddox complained about his condition to Sgt. Laufenberg, a member of the prison’s security staff. He says he saw Sgt. Laufenberg use the phone to relay his complaints to the dental department and the health services unit. Based on these calls, Maddox contends that his condition and request for immediate medical attention were known by three members of the medical staff — Brooke Bodart, a dental hygienist at the prison; Stephanie Sequin, a former nurse at the prison, now deceased; and Richard Heidorn, a physician at the prison.
When Dr. Jones next saw Maddox on July 25, he acknowledged that the surgery site had been healing slowly, but concluded it was not infected. To advance the heal*719ing, he prescribed penicillin, which by Maddox’s own account was successful, though Maddox claims he remained in pain until after his eventual oral surgery on August 11, when he was prescribed stronger pain medication.
Maddox’s Eighth Amendment claim survived initial screening but was ultimately defeated on summary judgment. The district court had allowed Maddox to proceed against Jones, Sequin, and Bodart on the theory that they knowingly deprived him of medical attention; and against Jean-anne Zwiers, the director of the prison’s Health Services Unit, and William Pollard, the warden, on the theory that they had personal knowledge that he was experiencing pain and failed to intervene. The court, however, went on to grant summary judgment in favor of all of the defendants. The court’s ruling rested primarily on its conclusion that Maddox had not shown that he suffered a serious injury by the delay in dental treatment. It reasoned that if there was no infection when Dr. Jones inspected the surgical site on July 24, there likely was no infection when Maddox complained to authorities a week earlier. Without proof of an infection, the court explained, Maddox could not show that prison officials disregarded a serious risk to his health.
On appeal, Maddox first challenges the district court’s conclusion that he was never in serious need of medical attention. Resting on his affidavits and those of his fellow inmates, he argues that a fact question exists over whether the pain in his mouth, coupled with a potential infection, amounted to an objectively serious medical need. His position is defensible, see Board v. Farnham, 394 F.3d 469, 480 (7th Cir. 2005) (affirming summary judgment for inmate who submitted evidence that he suffered dental problems after being deprived of toothpaste for three weeks); Hartsfield v. Colburn, 371 F.3d 454, 457-58 (8th Cir.2004) (reversing summary judgment in favor of jail physician and nurse where evidence showed six-week delay in dental treatment caused pain and infection); Boyd v. Knox, 47 F.3d 966, 969 (8th Cir.1995) (vacating grant of summary judgment for dentist who waited three weeks before referring inmate with infected wisdom tooth), and we are not persuaded by the district court’s gratuitous comment that infections “would not establish (or even hint at) deliberate indifference [because they] occur all the time, and the United States Constitution was not drafted and ratified in order to prevent them.” Countless cases says otherwise. See E.g., Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th Cir.2009) (prisoner could state an Eighth Amendment claim against hospital officials by alleging that they failed to treat his arm, resulting in severe pain and infection); Gil v. Reed, 381 F.3d 649, 662 (7th Cir.2004) (reversing summary judgment in favor of physician who failed to dispense antibiotics to prisoner who needed the drugs to treat an infection).
But even if we were to assume that Maddox’s condition was sufficiently serious, he still must meet his burden of production on the issue of deliberate indifference. Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir.2010). To demonstrate deliberate indifference, he must show that the defendants were subjectively aware of a serious risk to his health and either knowingly or recklessly disregarded it. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir.2009).
We turn first to Maddox’s claim against Dr. Jones. Maddox renews his argument that the condition in which Dr. Jones left his tooth is evidence from which a trier of fact could infer deliberate indifference. It was reckless, he contends, for *720Dr. Jones to send him away with an exposed tooth and no means of countering a potential infection. Worse yet, he points out, Dr. Jones left for a week knowing that his patients would not have access to dental treatment in his absence.
The record evidence is insufficient to support an inference that Dr. Jones consciously disregarded a substantial risk to Maddox’s health. Although Maddox contends that his untreated tooth condition should have alerted Dr. Jones to the seriousness of the situation, an official’s failure to address an apparent risk of harm does not give rise to an Eighth Amendment violation. See Farmer v. Brennan, 511 U.S. 825, 838, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Anderson v. Cornejo, 355 F.3d 1021, 1027 (7th Cir.2004). Instead, “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 838, 114 S.Ct. 1970. Nor does the record suggest that a risk of serious harm was apparent from the outset. Maddox admits that his tooth was not infected when he left Dr. Jones’s office on July 13, and the record does not reflect that he complained of pain until four days later. By then, however, Dr. Jones had left for the week, and he did not receive Maddox’s request for treatment until he returned. By Maddox’s own account, Dr. Jones upon reviewing the DSR promptly scheduled an appointment and treated Maddox the following day. Maddox’s argument that Dr. Jones should have prescribed antibiotics beforehand is at best a claim of malpractice, which does not violate the Eighth Amendment. Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir.2006).
Maddox also challenges the district court’s grant of summary judgment in favor of Dr. Heidorn, Nurse Sequin, and dental hygienist Bodart. He argues that all three officials were aware of a serious risk to his health and yet failed to take steps to address it. The primary evidence he offers against the three officials is his own affidavit recounting Sgt. Laufenberg’s assurance that his complaints were relayed to employees in the dental and health units. But Sgt. Laufenberg’s representations to Maddox about what information was relayed in his phone conversations are inadmissable hearsay and may not be relied upon to defeat summary judgment.2 Fed.R.Evid. 802; Haywood v. Lucent Tech., Inc., 323 F.3d 524, 533 (7th Cir. 2003); see also Collins v. Seeman, 462 F.3d 757, 760 n. 1 (7th Cir.2006). Maddox tries to sidestep this evidentiary hurdle by arguing that he “observed” Sgt. Laufenberg on the phone with medical officials, but observations cannot verify the contents of a phone conversation.
Maddox argues that there is other evidence in the record that raises a fact question about whether Heidorn and Sequin harbored culpable states of mind. Regarding Nurse Sequin, Maddox refers to, somewhat ambiguously, a medical record reflecting that she refilled his Ibuprofen prescription two days after he first requested medical attention. But from this it cannot be inferred that Nurse Sequin knew the reason he needed Ibuprofen, or, more importantly, that the Ibupro*721fen would be inadequate. See Collins, 462 F.3d at 761. For much the same reason, Maddox cannot show deliberate indifference on the part of Dr. Heidorn, whose only connection to this case is a form he completed on July 17, 2006, referring Maddox to an oral surgeon. The form does not specify the purpose of the appointment and provides no details suggesting that Dr. Heidorn knew Maddox was in serious pain.
As for hygienist Bodart, Maddox argues that the district court should have inferred deliberate indifference from a time stamp on his DSR dated July 18, 2006, presumably a day she was on call. As Maddox tells it, Bodart received the DSR, stamped it, and then filed it away without notifying health services. This, he argues, was sufficient to create a question of fact about her culpability. We disagree. Maddox does not dispute that under the policy in place at the time, only a dentist could schedule DSRs and assign them priority. Bodart could stamp incoming DSRs to verify receipt, but she had no authority to review them. Absent any evidence that she reviewed the DSR (in contravention of prison policy), the limited scope of her authority negates any inference of her culpability. See Norfleet, 439 F.3d at 397 (low-level employee’s adherence to prison policy concerning pain relievers could not support an inference of deliberate indifference); see also Camberos v. Branstad, 73 F.3d 174,177 (8th Cir.1995).
Maddox’s claims against Zwier and Pollard fare no better. Even if he had evidence of constitutional violations on the part of the prison medical staff, Zwier and Pollard could be held liable only if they knew Maddox’s condition was serious and yet disregarded it. Steidl v. Fermon, 494 F.3d 623, 631 (7th Cir.2007); Jones v. City of Chicago, 856 F.2d 985, 992-93 (7th Cir. 1988). But Zwier asserted in an affidavit that her only involvement in this matter was being copied on an internal grievance on July 27. By that point, Maddox had been treated by Dr. Jones, and Zwier’s follow-up inquiries with Nurse Sequin did not reveal a need for further intervention. As for Pollard, nothing in the record suggests that he was aware of Maddox, let alone his health status.
AFFIRMED.
. A policy vesting dentists with sole authority to review dental service requests would seem to invite disaster where, as here, an extended period of time passes with no dentist on site. Although the prison avoided a constitutional violation on this record, the consequences could have been far more serious.
. The hearsay problem is worse than Maddox lets on to. He claims that Sgt. Laufenberg "relayed” his complaints to health officials, but the prison’s complaint examiner reported, and Maddox does not dispute, that Sgt. Lau-fenberg was actually working through an intermediary, Officer Kennedy. Officer Kennedy was the official in contact with health services, and Maddox would need his statements, along with Sgt. Laufenberg’s, in order to demonstrate which officials knew what. See United States v. Poison, 285 F.3d 563, 567 (7th Cir.2002). ’ | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478679/ | ORDER
Tonicia Boston sued Memorial Medical Center under the Americans with Disabilities Act, claiming that her former employer failed to accommodate her disability. See 42 U.S.C. § 12112(a), (b)(5)(A). The district court concluded that Boston was not disabled under the ADA and granted summary judgment against her; in the alternative, the district court reasoned, Boston had not shown that Memorial failed to accommodate her disability. Boston appeals, but we affirm the judgment. Although we think that Boston presented sufficient evidence to survive summary judgment on the question whether she is disabled under the ADA, we agree with the district court that she did not show that Memorial refused to accommodate her disability.
Boston was working for Memorial as a registered nurse when she suffered an on-the-job injury that resulted in a chronic back condition. As a result, she testified at her deposition, she could bathe by herself only “occasionally.” Keeping in mind that we are reviewing a grant of summary judgment, we construe the somewhat ambiguous deposition testimony in the light reasonably most favorable to Boston as the non-moving party. At least a few times per week she required the assistance of her mother or young daughter, she explained, and “occasionally” she would not be able to bathe at all. Likewise, Boston said, she was able to prepare her own meals only once or twice a week and other*723wise relied on her mother. And only rarely was she able to clean her house, Boston complained. But, she admitted, she could perform some daily chores without any assistance at all, including dressing herself, driving to work, and walking from the parking lot to her office.
Memorial concluded that a registered nurse’s duties were too physically demanding for someone with Boston’s condition and granted her request to work as a clinical case manager instead. In January 2005, Boston began to train for her new position, which required a lot of sitting. The constant sitting aggravated her condition, so she asked Julie Meyers, her supervisor, if she could take occasional breaks. Meyers apparently did not grant Boston’s request. In March Boston asked Meyers if she could work fewer hours during an upcoming shift because her back was acting up. Meyers told Boston that, unless she was sick, she needed to work the hours she was scheduled.
Memorial issued a written warning regarding Boston’s performance the following week. The warning identified four areas of concern — Boston took too many breaks, called in sick excessively, communicated uncivilly with other employees, and often did not follow proper procedures. In response to Memorial’s accusation that she took too many breaks, Boston submitted notes from two doctors explaining that her chronic back condition required an accommodation. One doctor advised that, once every hour or two, Boston should stand and move around for about five minutes; the other doctor advised that Boston should avoid sitting for more than one to two hours at a time. A Memorial employee wrote “OK” on each note, and Memorial did not discipline Boston again. Indeed, Boston testified at her deposition that she made “a good effort” to comply with her doctors’ instructions. A few weeks later, Meyers told Boston that she could begin working eight-hour shifts instead of twelve-hour shifts. However, after submitting her doctors’ notes, Boston’s attendance plummeted — she called in sick fourteen times and worked only twelve shifts before resigning at the beginning of June.
Boston sued, alleging that Memorial ran afoul of the ADA by failing to accommodate her disability. See 42 U.S.C. § 12112(a), (b)(5)(A). The district court granted summary judgment for Memorial, concluding that Boston was not disabled under the ADA because her physical impairment did not substantially limit a major life activity. See id. § 12102(1)(A). Boston had argued that she was substantially limited in the major life activities of caring for herself and performing manual tasks. See 29 C.F.R. § 1630.2(i), (j). But the district court thought that Boston’s case was indistinguishable from Squibb v. Memorial Medical Center, 497 F.3d 775, 784 (7th Cir.2007), which held that a plaintiff who could only occasionally cook, clean, and shop for groceries — but could drive, bathe, brush her teeth, and dress herself— was not substantially limited in the major life activity of caring for herself. The district court reasoned in the alternative that, even if Boston were disabled, she had not shown that Memorial failed to accommodate her disability.
Boston argues on appeal'that she is disabled under the ADA; Squibb is distinguishable, she says, because, unlike the plaintiff in that case, she is only occasionally capable of bathing herself. We think she has presented sufficient evidence that she is disabled at least to survive a motion for summary judgment. The Supreme Court has identified bathing in particular as an activity that is “of central importance to people’s daily lives” and that a court must consider when assessing whether a plaintiff is disabled under the ADA. See *724Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 202, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002). In Squibb we examined the daily tasks that the plaintiff could perform in light of the daily tasks she could not perform; our evaluation convinced us that, given what she could do, she was not severely restricted in the major life activity of caring for herself. 497 F.3d at 784. But in view of modern norms in American culture, the balance changes significantly when an employee is not able to bathe on her own but needs help or must go without. The relevant deposition testimony is somewhat ambiguous, but as the non-moving party, Boston is entitled to the benefit of reasonable doubts. Given the individualized inquiry that the ADA requires, see EEOC v. Lee’s Log Cabin, Inc., 546 F.3d 438, 442 (7th Cir.2008), Memorial was not entitled to summary judgment on the ground that Boston was not a qualified individual with a disability.
But Boston’s claim still fails because she has not shown that Memorial failed to accommodate, her. Memorial first accommodated her back condition by offering her a new job that was not as physically demanding as her old job. See Mays v. Principi, 301 F.3d 866, 871, 872 (7th Cir. 2002). When even the less-demanding duties of her new position caused her condition to act up, Memorial responded to Boston’s request for an additional accommodation by permitting her to take more frequent breaks. Contrary to Boston’s assertions in her brief, there is no evidence in the record that Memorial refused to permit these additional breaks once it understood the medical necessity or that Boston thought she would jeopardize her job by taking the breaks and so suffered in silence instead. In fact Boston acknowledged in her deposition testimony that she made “a good effort” to take more frequent breaks at work and was not disciplined by Memorial after she gave Meyers a copy of her doctors’ orders.
Boston argues that Memorial did not engage her in the “interactive process” contemplated by 29 C.F.R. § 1630.2(o )(3) to “identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” But even if Boston is correct, Memorial’s failure does not, by itself, entitle her to relief. See Ozlowski v. Henderson, 237 F.3d 837, 840 (7th Cir.2001). She must also show the existence of a reasonable accommodation that, because there was no interactive process, she did not obtain. See Mays, 301 F.3d at 870; Ozlowski, 237 F.3d at 840. The only accommodation she has identified, however,' is taking more frequent breaks. The undisputed evidence in the record shows that Memorial permitted these breaks, and Boston nevertheless resigned after a few more weeks of work. If Memorial erred in some way in handling Boston’s request for an accommodation, and we do not believe that it did, any such error was harmless. See Mays, 301 F.3d at 871.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478683/ | *736ORDER
Jermel Pope pleaded guilty to transporting a minor in interstate commerce while intending that she engage in prostitution, see 18 U.S.C. § 2421, and was sentenced to 100 months’ imprisonment. He argues on appeal that his below-guidelines sentence is proeedurally unsound because the district court did not adequately respond to his argument that he deserved an even lower sentence. Although he did not need to, the district court did respond to Pope’s plea for leniency and granted it to a reasonable extent We affirm the judgment.
Pope’s victim was only about 40 days shy of her eighteenth birthday when he picked her up at her parents’ house in Wisconsin and drove her to Illinois to work as a prostitute. Pope photographed his victim in sexually explicit poses and posted those photographs on the internet. At least 20 men responded over a two-week period, and Pope arranged for them to receive sexual services from his victim in exchange for money. The victim wrote Pope that she loved him; he replied that she must remain under his authority and warned her that he was very “controlling” and would “put a chain around [her] neck ... if thats what have [sic] to be done.”
Pope’s sentencing exposure under the guidelines increased considerably because his victim was a minor. The district court used U.S.S.G. § 2Gl.S(a)(4) to set Pope’s base offense level at 24. The district court added two levels because Pope used a computer to solicit customers for his victim, see U.S.S.G. § 2G1.3(b)(3)(B), two more levels because the offense involved a commercial sex act, see id. § 2G1.3(b)(4)(B), and two additional levels because Pope played a supervisory role in the offense, see id. § 3Bl.l(c). Finally, the district court decreased Pope’s offense level by three levels because he accepted responsibility. See U.S.S.G. § 3El.l(a). Pope’s offense level of 27 and his criminal history category of VI produced a guidelines range of 130 to 162 months’ imprisonment, which was above the statutory maximum sentence of 120 months, see 18 U.S.C. § 2421. The government wanted Pope sentenced to the statutory maximum.
Pope argued at sentencing that his guidelines range greatly overstated the seriousness of his offense; he requested a 46-month sentence instead. Had he made his trip to Wisconsin a mere 40 days later, Pope maintained, his victim no longer would have been a minor, so the district court would have used U.S.S.G. § 2Gl.l(a)(2) to set his base offense level at 14. No adjustments would have been available under that guideline for Pope’s use of a computer or because the offense involved a commercial sex act. After factoring in his supervisory role and acceptance of responsibility, Pope’s offense level probably would have been 13 and his guidelines range only 33 to 41 months.
The district court agreed with Pope that, in light of his victim’s age and the sentencing consequences that followed, “a small adjustment” would be proper under 18 U.S.C. § 3553(a)(2)(A): “I am ... aware that it was a month and a half, and it would have been a much less serious crime. That doesn’t change the seriousness of the crime. It does seem to me that 3553 does provide some basis for making a small adjustment.” But the district court did not go as low as Pope requested. Although Pope’s victim was almost 18, the district court explained, her other characteristics enhanced the seriousness of Pope’s offense. She was a “mentally abused,” poorly educated “runaway” who had fallen “in love” with Pope, the district court observed, and Pope took advantage by threatening and exploiting her. After reflecting on these competing considerations, the district court sentenced Pope to 100 months’ imprisonment.
*737Pope argues on appeal that his sentence is procedurally unsound because the district court did not conduct a meaningful analysis of his request for a 46-month sentence in light of the sentencing factors enumerated in 18 U.S.C. § 3553(a) and failed to explain why it chose a 100-month sentence instead. A district court should respond to a defendant’s nonfrivolous argument for a below-guidelines sentence, although just how much explanation is required varies depending on the circumstances. Rita v. United States, 551 U.S. 338, 356-58, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Miranda, 505 F.3d 785, 795-96 (7th Cir.2007). Whether a defendant’s sentence is procedurally sound is a question for de novo review. United States v. Are, 590 F.3d 499, 530 (7th Cir.2009).
Despite his insistence otherwise, the district court did respond to his argument that he deserved a below-guidelines sentence. What is more, the district court actually granted his request to a reasonable extent by sentencing him below his guidelines range and below the statutory maximum.
The district court reached this conclusion by conducting a meaningful analysis of the § 3553(a) factors. At sentencing, Pope focused his argument on the specific statutory command that a sentence should adequately reflect the seriousness of the offense. After contemplating how that statutory goal applied to the facts of Pope’s case, the district court granted Pope a below-guidelines sentence because his victim was almost 18. Pope’s criticism that the district court neglected to mention all the § 3553(a) factors in checklist fashion is for naught because the statute does not require a mechanical run-through of each sentencing factor. See United States v. Perez, 581 F.3d 539, 548 (7th Cir.2009).
The district court also adequately explained why it rejected Pope’s proposed 46-month sentence and chose to sentence him to 100 months’ imprisonment instead. Recognizing that Pope’s guidelines range of 130 to 162 months would have plummeted to 33 to 41 months had the victim not been a scant 40 days away from her eighteenth birthday, the district court was nevertheless mindful that the sentencing guidelines express a special concern for commercial-sex offenders who prey on young, impressionable victims. See U.S.S.G. § 2G1.3. And looking closely at the relationship between Pope and his victim, the district court saw a manipulative man threatening and sexually exploiting a vulnerable girl who, although she was almost 18, was also a mentally abused, poorly educated, and desperate runaway. These considerations convinced the district court that the crime was indeed serious— more serious than Pope’s proposed sentence reflected — and that a 100-month sentence was warranted instead.1 The sentence was therefore procedurally sound.
Reading between the lines, Pope’s real objection seems to be that his sentence is substantively unreasonable — that the district court’s application of the § 3553(a) factors to the facts of his case was an abuse of discretion. See Are, 590 F.3d at 530. But Pope has not developed such a challenge. Nor has he even attempted to surmount the presumption of reasonableness that attaches to a below-guidelines *738sentence. See United States v. Poetz, 582 F.3d 835, 837 (7th Cir.2009).
AFFIRMED.
. The government also asked the district court to take into consideration Pope’s extensive criminal history, noting that, by the age of 23, he had "racked up 19 convictions and 17 criminal history points, a criminal history that normally would take someone a lifetime, if not more, to gather.” | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478685/ | ORDER
Andre Welch was found guilty by a jury of bank robbery, see 18 U.S.C. § 2113(a), and sentenced to 160 months in prison. After his conviction and sentence were affirmed on direct appeal, Welch filed a motion to vacate under 28 U.S.C. § 2255. He claimed that the federal public defender who represented him at trial was ineffective because he either mishandled a plea offer from the government or else failed even to pursue plea negotiations with prosecutors. After an evidentiary hearing, the district court denied Welch’s motion. The court found that the government had never proposed, and defense counsel had never solicited, a plea agreement, and that counsel for Welch had acted reasonably given Welch’s insistence on going to trial and the relative weakness of the government’s case against him. We' affirm the judgment.
Although no eyewitness identified him and no physical evidence at the bank tied him to the robbery, Welch was convicted in 2003 based on the testimony of his ex-wife, a former roommate, and a former coworker, all of whom identified Welch as the man in the grainy photographs taken by surveillance cameras at the bank. Welch’s direct appeal took a long time to resolve because Booker was decided while the case was pending. See United States v. Welch, 368 F.3d 970 (7th Cir.2004); United States v. Welch, 429 F.3d 702 (7th Cir.2005). In 2007, after the direct appeal had finally concluded, Welch filed a pro se § 2255 motion that included the first iteration of his ineffective-assistance claim against his public defender, Imani Chiphe. This pro se motion, as well as the amended version filed after the district court had appointed counsel, centered on a claim that Chiphe had misadvised Welch about a plea proposal from the government that would require him to serve only 48 months in prison. Welch alleged that he became aware of this offer only because Chiphe had discussed it with his wife. He was not interested, he explained, in the offer because Chiphe also communicated, first to his wife and later to him directly, that at most he could get 60 to 72 months in prison even if he went to trial. But Welch added that he would have accepted the proposed deal if Chiphe had not misrepresented the maximum prison exposure and also failed to *741anticipate upward adjustments that would be applied for several uncharged robberies and obstruction of justice.
The district court conducted an eviden-tiary hearing to explore whether the 48-month plea deal had actually been offered and what, if any, discussions occurred between Chiphe and Welch regarding potential sentencing issues and the decision to go to trial. At the hearing, Welch contradicted the allegations in his pro se and counseled § 2255 motions. Now he testified that he never talked to Chiphe at all about the possibility of pleading guilty, despite his contrary descriptions of the allegedly mishandled 48-month plea deal. According to Welch, Chiphe never discussed with him potential sentencing scenarios, and, in particular, Chiphe never explained the possibility of getting credit for acceptance of responsibility if he pleaded guilty. Welch did concede, however, that he never told Chiphe he was interested in negotiating a plea agreement. And, despite his admission that he is familiar with plea negotiations after having entered guilty pleas in three previous cases, Welch also conceded that he never asked Chiphe about the possibility of pleading guilty nor did he tell Chiphe to contact the prosecutor to find out about a plea deal.
For his part, Chiphe testified that he and the prosecutor never discussed a possible plea agreement — 48 months or otherwise. From the very beginning, Chiphe recounted, Welch had vehemently maintained his innocence and had agreed with Chiphe that, given the weakness of the government’s evidence, the case could be won at trial. Chiphe explained that “Mr. Welch was never seriously contemplating pleading guilty,” and that all along their plan was to go to trial. Chiphe did not remember whether Welch ever specifically told him not to engage in plea discussions with the government, but he added that he “had a client who was telling me he was innocent, so, I mean, that’s kind of the same thing.” When Welch “told me he was innocent and told me he wanted to go to trial,” Chiphe continued, “I took that to mean that he did not want to plea[d].” Chiphe disputed Welch’s testimony that they did not discuss different sentencing scenarios; although he could not remember the specific dates, Chiphe confirmed that he engaged in extensive discussions with Welch about possible guidelines outcomes and their consequences, including his eligibility for an acceptance reduction under U.S.S.G. § 3E1.1. Chiphe explained that Welch was “well aware” of the possibility of guidelines adjustments based on obstruction and the uncharged robberies because he had been “very involved in the litigation of [his] case.”
The prosecutor corroborated Chiphe’s testimony. He explained that he never made a plea offer because it was his practice to wait for the defendant to approach him, which never happened in this case.
After the evidentiary hearing, Welch’s lawyers abandoned his allegations about a 48-month plea offer. Instead, in post-hearing submissions, Welch offered an entirely new legal theory: Chiphe’s failing was not that he mishandled a 48-month deal, but that he never initiated plea negotiations in the first place. The district court acknowledged this about-face when the judge rejected Welch’s claim of ineffective assistance and denied his § 2255 motion. The judge highlighted Welch’s shifting and contradictory assertions and determined, based on Chiphe’s credible testimony corroborated by the prosecutor, that there never had been a plea offer. Regarding Welch’s new theory that Chiphe should have initiated plea negotiations, the court concluded that Chiphe’s decision not to approach the government did not constitute deficient performance. Welch had maintained his innocence and *742insisted on a trial, the court reasoned, so there was no reason for Chiphe to have believed that he would agree to a plea bargain. The court noted the weakness of the government’s case and the reasonable chance of an acquittal at trial, and also gauged as significant that Welch never asked Chiphe about the possibility of a plea bargain despite his considerable experience with the criminal justice system, including the three cases that had ended with guilty pleas.
In this court Welch argues that Chiphe’s performance was deficient because, says Welch, the lawyer unilaterally decided not to initiate plea negotiations. In defining what he believes to have been counsel’s unfulfilled obligation, Welch insists that Chiphe either should have independently pursued a plea deal with the government or else conferred with him before deciding against that plán of action. On appeal from the denial of § 2255 relief, we review issues of law de novo and issues of fact for clear error. Bednarski v. United States, 481 F.3d 530, 534 (7th Cir.2007).
Defendants have a constitutional right to effective assistance of counsel during plea negotiations. Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). To have prevailed on a claim of ineffective assistance of counsel, Welch was required to establish that counsel’s performance “fell below an objective standard of reasonableness” and caused him prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We give great deference to counsel’s judgment, recognizing that there is a wide range of reasonable defense strategies, id. at 689, 104 S.Ct. 2052; United States v. Recendiz, 557 F.3d 511, 531 (7th Cir.2009), and we analyze the reasonableness of counsel’s performance in the context of the facts of the particular case, Strickland, 466 U.S. at 688-89, 104 S.Ct. 2052.
Under the circumstances, Chiphe’s decision not to initiate plea negotiations was reasonable and in accordance with Welch’s own insistence on going to trial. It is well-established, and Welch concedes, that counsel does not have an absolute obligation to pursue plea negotiations in every case. See United States v. Wells, 394 F.3d 725, 735 (9th Cir.2005); Armienti v. United States, 313 F.3d 807, 814-15 (2d Cir. 2002); United States v. Boone, 62 F.3d 323, 327 (10th Cir.1995); Beans v. Black, 757 F.2d 933, 936 (8th Cir.1985); Dillon v. Duckworth, 751 F.2d 895, 901 (7th Cir. 1985). Nonetheless, Welch maintains that in this case it was unreasonable for Chiphe not to approach the government about a potential plea deal because Chiphe made that decision without consulting him or even discussing the possibility of a plea. Because the prosecutor had a policy of waiting for defense counsel to initiate plea negotiations, Welch says, the only way he could have found out about the benefits of a plea agreement is if his lawyer had approached the government. Welch implicitly argues that Chiphe failed to properly inform Welch of his options and thus his decision to go to trial was ill-advised.
But there is no factual support for Welch’s contention. The district court credited Chiphe’s testimony and found that the lawyer had engaged in extensive conversations with Welch about trial strategy, different sentencing scenarios (including the possibility of receiving a reduction for acceptance of responsibility if Welch entered a plea), and the weaknesses of the government’s case. The court also found that, throughout these discussions, Welch adamantly maintained his innocence and consistently expressed his desire to have a trial. These findings deserve great deference, see Bednarski, 481 F.3d at 534, and this evidence demonstrates that Chiphe competently advised his client, see Davis v. Greiner, 428 F.3d 81, 88-89 (2d Cir.2005); *743Moss v. United States, 323 F.3d 445, 475 (6th Cir.2003); Purdy v. United States, 208 F.3d 41, 45 (2d Cir.2000). Based on his conversations with Welch, Chiphe reasonably understood that his client had no interest in entering a guilty plea. Although in hindsight Welch may now regret his choice, he received exactly the assistance he wanted at the time — an attorney who would aggressively fight the bank-robbery charge at trial. See Strickland, 466 U.S. at 689-90, 104 S.Ct. 2052; McAfee v. Thurmer, 589 F.3d 353, 356 (7th Cir.2009).
To the extent that Welch argues that Chiphe should have ignored his protestations of innocence and independently approached the government about a potential plea deal, his position is untenable. We do not require counsel to do that which is futile, and thus we would not mandate that counsel engage in the empty endeavor of negotiating a plea agreement for a client who has made it clear that he has no interest in entering a guilty plea. See Wells, 394 F.3d at 735 (rejecting defendant’s ineffective-assistance claim when it was his unwillingness to plead guilty that prevented counsel from initiating plea negotiations); Armienti, 313 F.3d at 814-15 (same). More importantly, creating a rule that counsel should disregard his client’s wishes would work the additional harm of jeopardizing the attorney-client relationship and the trust that counsel must establish to effectively represent his client. We would not require that counsel engage in such a betrayal, which necessarily would demonstrate a lack of faith in his client’s position and have the unintended effect of preventing counsel from providing the type of reasonable assistance that the Sixth Amendment requires.
Because we agree with the district court that counsel’s performance was reasonable, the prejudice prong of Strickland falls away. We note, however, that even now Welch continues to insist that he is innocent, which makes it difficult to believe his assertion that he would have accepted a plea deal if Chiphe had negotiated one. See, e.g., Humphress v. United States, 398 F.3d 855, 859 (6th Cir.2005) (noting that defendant’s assertion of innocence undermined his contention that he would have accepted a plea deal); Moss, 323 F.3d at 475 (rejecting defendant’s ineffective-assistance claim in part because defendant had maintained his innocence and made clear that he would not plead guilty under any circumstances); Sanders v. United States, 341 F.3d 720, 723 (8th Cir.2003) (“A defendant who maintains his innocence at all the stages of his criminal prosecution and shows no indication that he would be unwilling to admit his guilt undermines his later § 2255 claim that he would have pleaded guilty if only he had received better advice from his lawyer.”); United States v. Stevens, 149 F.3d 747, 748 (8th Cir.1998) (concluding that defendant could not establish prejudice when his post-trial assertions of innocence demonstrated that he would not have entered a guilty plea); United States v. Stantini, 85 F.3d 9,17 (2d Cir.1996). But see Griffin v. United States, 330 F.3d 733, 738 (6th Cir.2003) (explaining that declarations of innocence were not dispositive of whether defendant would have accepted plea agreement); Mask v. McGinnis, 233 F.3d 132, 138 (2d Cir.2000) (upholding district court’s conclusion that overwhelming evidence against defendant might have prompted him to accept plea agreement despite protestations of innocence). Moreover, Welch did not present any evidence that the government would have been amenable to a plea deal or under what terms Welch would have accepted such an agreement. See Gallo-Vasquez v. United States, 402 F.3d 793, 798-99 (7th Cir.2005) (noting that defendant must provide concrete evidence that a favorable plea offer would have been *744available to him); Prewitt v. United States, 83 F.3d 812, 819 (7th Cir.1996) (noting that defendant must do more than speculate about potential benefits that he was denied). Thus, Welch’s claim also fails for lack of prejudice.
Accordingly, we AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478687/ | [UNPUBLISHED]
PER CURIAM.
Timothy Wallace appeals the district court’s1 denial of his motion for an order directing the court clerk to send him a cassette tape. Having carefully reviewed the record, we find no basis for reversal. Accordingly, we affirm. See 8th Cir. R. 47B.
. The Honorable Carol E. Jackson, United States District Judge for the Eastern District of Missouri. | 01-04-2023 | 11-05-2022 |
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