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https://www.courtlistener.com/api/rest/v3/opinions/8479013/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order issued November 19, 2009, be affirmed. The district court prop*80erly dismissed the complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), because its bare assertion of “Fraud and False Statement” against the former United States Treasurer “lacks an arguable basis either in law or in fact.” See Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published.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/8479008/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief and supplement filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34®. It is
ORDERED AND ADJUDGED that the district court’s order issued January 19, 2010, be affirmed. The district court properly dismissed the appellant’s complaint for lack of subject matter jurisdiction because he failed to exhaust his administrative remedies as required under the Federal Tort Claims Act, 28 U.S.C. § 2675. The appellant’s prior lawsuits against several federal agencies do not satisfy § 2675, which requires presentation of the claim to the federal agency before filing an action in court. See McNeil v. United States, 508 U.S. 106, 112-13, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published.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/8479010/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order issued October 21, 2009, be affirmed. The district court did not abuse its discretion in dismissing the appellant’s complaint without prejudice for failure to comply with Fed.R.Civ.P. 8(a), which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” See Ciralsky v. CIA, 355 F.3d 661, 668-71 (D.C.Cir.2004).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of *78the 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/8479012/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order issued May 19, 2009, be affirmed. The district court properly construed the appellant’s complaint as a mandamus petition and dismissed it due to the appellant’s failure to show he had a clear right to the relief requested. See Power v. Barnhart, 292 F.3d 781, 784 (D.C.Cir.2002); Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (holding that the Administrative Procedure Act, 5 U.S.C. §§ 701-706, only provides for judicial review of an agency’s failure to act when the action is not committed to agency discretion by law). The regulation on which the appellant relies, 28 C.F.R. § 0.50, describing the general functions of the Civil Rights Division, serves an organizational purpose and does not make it mandatory for the Civil Rights Division to investigate every civil rights violation alleged. See Peek v. Mitchell, 419 F.2d 575 (6th Cir.1970) (holding that the Attorney General could not be compelled to investigate allegedly known civil rights violators because the matter was committed to prosecutorial discretion).
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/8479014/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order issued November 19, 2009, be affirmed. The district court prop*80erly dismissed the complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), because its bare assertion of “Fraud and False Statement” against the former United States Treasurer “lacks an arguable basis either in law or in fact.” See Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
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/8479016/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order issued October 7, 2009, be affirmed. The district court did not abuse its discretion in dismissing the appellant’s complaint without prejudice for failure to comply with Fed.R.Civ.P. 8(a), which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” See Ciralsky v. CIA, 355 F.3d 661, 668-71 (D.C.Cir.2004).
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/8479028/ | SUMMARY ORDER
Appellant Yusuf J. Nuraldin, pro se, appeals from the district court’s May 22, 2008 post-judgment order denying his motion “to amend or make additional findings” and “for reconsideration of judgment and modification or clarification of’ the district court’s February 15, 2008 order dismissing his civil rights complaint. We assume the parties’ familiarity with the underlying facts, procedural history of the case, and issues on appeal. Upon due consideration of the district court record and the parties’ submissions, we find no abuse of discretion in the district court’s decision. See Sequa Corp. v. GBJ Corp., 156 F.3d 136, 143 (2d Cir.1998); Transaero, Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724, 729 (2d Cir.1998).
For the foregoing reasons, the order of the district court is hereby AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479026/ | SUMMARY ORDER
Plaintiff Antonio Brown appeals from the March 25, 2009 judgment of the District Court denying plaintiffs motion for summary judgment and granting defendants’ motion for summary judgment. On appeal, plaintiff argues that the District Court erred in concluding that there was no question of material fact as to whether defendants violated plaintiffs rights under the Eighth Amendment and that defendants were entitled to judgment as a matter of law. We assume the parties’ familiarity with the facts and procedural history of this case.
We have reviewed each of plaintiffs claims and find them to be without merit. Substantially for the reasons stated by Magistrate Judge Randolph S. Treece in his careful and thoughtful report and recommendation of February 25, 2009, see Brown v. Raimondo, 06-CV-0773 (N.D.N.Y. February 25, 2009), which the District Court adopted, see Brown v. Raimondo, 06-CV-0773, 2009 WL 799970 (N.D.N.Y. March 25, 2009), the March 25, 2009 judgment of the District Court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479029/ | SUMMARY ORDER
On the basis of the record before us, including what we have learned at oral argument, we discern no error and therefore AFFIRM the judgment of the District Court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479031/ | Plaintiff-Appellant Michael J. Wasser, pro se, appeals from the August 28, 2008 judgment of the United States District Court for the Eastern District of New York (David G. Trager, Judge) dismissing his complaint. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of the issues on appeal.
We discuss in a separate opinion filed today the appropriate standard of review for district courts to apply when a plaintiff commences a civil action under section 102 of the Rehabilitation Act, 29 U.S.C. § 722(c)(5)(J), seeking review of a final state administrative decision. We find, for the reasons provided in that opinion, that the District Court stated and applied the appropriate standard of review under § 722(c)(5)(J) in dismissing plaintiffs claims.
Having reviewed plaintiffs remaining contentions on appeal and the record of proceedings below, we affirm for substantially the same reasons stated by the District Court in its thorough and well reasoned opinion. See Wasser v. N.Y. State Office of Vocational & Educ. Servs. for Individuals with Disabilities, 683 F.Supp.2d 201 (E.D.N.Y.2008). Specifically, despite plaintiffs arguments before us to the contrary, we find that the District *121Court was correct in holding that (i) the New York State Office of Vocational and Educational Services for Individuals with Disabilities (“VESID”) is permitted to consider cost when determining the vocational rehabilitation services it will provide to disabled individuals so long as it does not “place absolute dollar limits on specific service categories,” and it “permits exceptions [to any fee schedules] so that individual needs can be addressed,” 34 C.F.R. § 361.50(e)(2)(ii), (3); see also Murphy v. Office of Vocational & Educ. Servs, for Individuals with Disabilities, 92 N.Y.2d 477, 683 N.Y.S.2d 139, 705 N.E.2d 1180, 1185 (1998); (ii) VESID properly reimbursed plaintiff for law school tuition rates only up to the cost of a public law school, rather than the cost of the private law school plaintiff chose to attend; (iii) VE-SID’s policy not to purchase base vehicles for clients’ transportation needs is proper; (iv) it was premature for VESID or the District Court to decide the cost of, and possible reimbursement for, necessary modifications to a base vehicle in order to enable plaintiff to drive to and from work because plaintiff has yet to complete the required evaluations; (v) the record supports VESID’s decision to deny reimbursement to plaintiff for costs he incurred during an internship in the summer of 1998 while he was still a student at Brooklyn Law School; (vi) VESID is not required to provide plaintiff with a back-up motorized wheelchair; and (vii) VESID properly closed plaintiffs case. We have considered all of plaintiffs arguments and find 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/8479018/ | JUDGMENT
PER CURIAM.
This appeal was considered upon the briefs and the appendices filed by the parties. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order denying the appellant’s motion to vacate, set aside, or correct his conviction be affirmed.
After an extensive bench conference about a juror’s possible use of a document apparently related to the “prisoner’s dilemma,” Washington waived any objection to the court’s decision not to question the juror and then failed to raise the issue on direct appeal, 353 F.3d 42 (D.C.Cir.2004). As a result of this double procedural default, Washington may raise the issue now only upon a showing of cause and prejudice. See United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); United States v. Pettigrew, 346 F.3d 1139, 1144 (D.C.Cir.2003). The district court properly held Washington shows neither. Washington’s attempt to show cause by arguing ineffective assistance of counsel is unavailing because that claim also requires him to show prejudice, in addition to deficient performance. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). His failure to show cause and prejudice prevents him both from raising this issue on collateral review and from showing-good cause for his request to interview jurors.
*81Pursuant 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/8479020/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order issued October 19, 2009, be affirmed. The district court properly dismissed the appellant’s negligence action as time-barred pursuant to D.C.Code § 12-301(8). The appellant claims for the first time on appeal that the limitations period should be equitably tolled due to her alleged mental incapacity, the supposed existence of a continuing tort, and the poor legal advice she received from counsel. Because she failed to make these arguments before the district court, this court need not consider them. See District of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1084 (D.C.Cir.1984) (“It is well settled that issues and legal theories not asserted at the District Court level ordinarily will not be heard on appeal”). Even if these issues were properly before the court, the appellant has not demonstrated hér entitlement to equitable tolling. See Lawrence v. Florida, 549 U.S. 327, 336-37, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007) (“Attorney miscalculation is simply not sufficient to warrant equitable tolling [of a limitations period].”); Chalabi v. Hashemite Kingdom of Jordan, 543 F.3d 725, 729 (D.C.Cir.2008) (holding that the continuing tort doctrine requires at least one injurious act to be within the limitation period); Smith-Haynie v. District of Columbia, 155 F.3d 575, 580 (D.C.Cir.1998) (holding that a person must be “incapable of handling her own affairs or unable to function in society” in order to qualify for equitable tolling due to mental incapacity).
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. *82See 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/8479022/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs and appendices filed by the parties. See Fed. RApp. P. 34(a)(2); D.C.Cir. Rule 34(j). Upon consideration of the foregoing, it is
ORDERED AND ADJUDGED that the district court’s order filed April 15, 2009, dismissing appellant’s claims be affirmed. Appellant’s claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), were properly dismissed for lack of venue. See 28 U.S.C. § 1391(b). Not all the defendants reside in the District of Columbia, and a “substantial part of the events or omissions giving rise to the elaim[s]” did not occur in the District. The district court also properly dismissed appellant’s claims under the Federal Tort Claims Act, 28 U.S.C. § 1346 et seq. (FTCA), for lack of venue. See 28 U.S.C. § 1402(b). Appellant does not live in the District (nor does he claim to be a D.C. resident), and his FTCA claims relate to his treatment at non-D.C. facilities. And because appellant does not argue that the district court did not address his official capacity constitutional claims, appellant has waived those claims on appeal. See Cruz v. American Airlines, Inc., 356 F.3d 320, 338-34 (D.C.Cir.2004) (where district court did not address claim, appellant must “present, argue, and support” it in opening brief for consideration by court of appeals).
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. RApp. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479023/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It
ORDERED AND ADJUDGED that the district court’s order issued January 14, 2009, be affirmed. The district court properly dismissed the complaint for lack of standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-74, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The district court may dismiss a prisoner’s complaint for lack of standing prior to service of process on the defendants. See Thompson v. Drug Enforcement Administration, 492 F.3d 428, 439 (D.C.Cir.2007) (concluding that a district court “may use the occasion” of reviewing a complaint pursuant to the Prison Litigation Reform Act, 28 U.S.C. § 1915A, “to dismiss on grounds listed in neither section 1915A nor section 1915(g),” such as lack of standing). Therefore, appellant cannot rely on the defendants’ alleged failure to respond to the complaint.
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/8479033/ | OPINION OF THE COURT
RENDELL, Circuit Judge.
Kevin Ortega and Edwin Molina are co-defendants who pled guilty to conspiring to distribute cocaine base. On appeal, Ortega challenges the District Court’s denial of his motion to withdraw his guilty plea and Molina challenges the District Court’s calculation of his sentencing guidelines. In the middle of their trial, both Ortega and Molina entered into plea agreements with the government that contained identical appellate waivers. The waivers bar all claims on appeal except those contending that (1) the defendant’s sentence exceeds the statutory maximum; (2) the sentencing judge erroneously departed upward from the sentencing guidelines; or (3) the sentencing judge imposed an unreasonable sentence above the sentencing guideline range. On appeal, neither defendant mentions, let alone challenges, the waiver, nor do they explain how their challenges fall within an exception to the waiver.
Molina contests the District Court’s calculation of his sentencing guideline range, specifically the Court’s application of a 2-point enhancement for obstruction of justice. Molina’s challenge is undoubtedly covered by the appellate waiver, as the waiver precludes appeals brought under 18 U.S.C. § 3742. See United States v. Price, 558 F.3d 270, 284 (3d Cir.2009). Molina does not contend that the waiver was not knowing and voluntary, that enforcing the waiver would result in a miscarriage of justice, or that his challenge to the District Court’s calculation of the guidelines falls under one of the three exceptions to the waiver. Molina’s claim is thus unreviewable on appeal. We will en*213force the waiver of appeal and AFFIRM Molina’s sentence.
Ortega contends that the District Court abused its discretion in denying his motion to withdraw his guilty plea. He asserts that we have jurisdiction to hear this appeal under 18 U.S.C., § 3742 and 28 U.S.C. § 1291. However, the appellate waiver in his plea agreement specifically states that he waives all rights to appeal or collaterally attack his conviction or sentence under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. Like Molina, Ortega makes no argument as to why this waiver does not apply. Therefore, we also decline to reach the merits of Ortega’s argument and will AFFIRM his conviction and sentence. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479038/ | OPINION OF THE COURT
JORDAN, Circuit Judge.
Mon River Towing, Inc., J.A.R. Barge Lines, L.P., J.A.R. Barge Lines, L.L.C. and Sylvan Investments, Inc. (collectively “appellants”) appeal from a judgment entered against them by the United States District Court for the Western District of Pennsylvania, requiring them to pay $296,108.83 in attorneys’ fees to Ingram Barge Co. (“Ingram”). For the following reasons, we will affirm, with one minor exception as discussed below.
I. Background
As the facts are well known to the parties, we do not repeat them here. The only issue on appeal is whether the District Court correctly found, pursuant to Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956), that appellants were required to indemnify Ingram for the attorneys’ fees it incurred while defending against a lawsuit brought by appellants’ seaman, who was injured while towing one of Ingram’s barges. The Ryan doctrine, as it has come to be called, allows a shipowner to recover indemnity from a marine contractor when the shipowner has ceded control of the ship to the contractor for the performance of certain services and the contractor’s improper performance of those services exposes the shipowner to an unseaworthiness claim.1 See Burris v. Global Bulk Carriers, Inc., 505 F.2d 1173, *2671174-75 (3d Cir.1974) (“The Ryan decision was an effort to alleviate the shipowner’s absolute liability under the unseaworthiness doctrine in situations where the shipowner has relinquished control of some operations on the vessel to the stevedore.” (citations omitted)). Although Ryan was decided in the context of an injured longshoreman who was covered by the Longshoremen’s and Harbor Workers’ Compensation Act (“LHWCA”), which requires an employer to compensate his employee’s injury pursuant to a schedule of compensation,2 it was thereafter extended by some courts to cases involving injuries to Jones Act seamen, who are not covered by the LHWCA.3 See Dunbar v. Henry DuBois’ Sons Co., 275 F.2d 304, 305-07 (2d Cir.1960); see also McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 347, 111 S.Ct. 807, 112 L.Ed.2d 866 (1991) (noting that “the Jones Act and the LHWCA are mutually exclusive”). In 1972, amendments to the LHWCA abrogated Ryan in its original context such that it no longer applies to longshoremen covered by the LHWCA. H.R.Rep. No. 92-1441, at 4701-04 (1972); see also Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 262, 99 S.Ct. 2753, 61 L.Ed.2d 521 (1979).
II. Discussion4
Appellants’ primary argument on appeal is that Ryan is an outdated relic of admiralty law that we should put to rest, in light of the 1972 amendments to the LWHCA and the fact that other circuits have retreated from or criticized it. See, e.g., Lubrano v. Waterman S.S. Co., 175 F.3d 274, 276 (2d Cir.1999) (‘Ryan indemnity is virtually dead, at least in [the Second] Circuit.”). That argument is easily, if not entirely comfortably, disposed of. Long after the 1972 amendments, we applied Ryan in a case concerning injuries to a seaman, making clear that Ryan is still binding within this Circuit in the seaman context. See Cooper v. Loper, 923 F.2d 1045, 1050-51 (3d Cir.1991); see also Purnell v. Norned Shipping B. V., 801 F.2d 152, 154 n. 1 (3d Cir.1986) (“[T]he 1972 amendments do not limit Ryan’s applicability to employees ... who are not covered by [the LHWCA].”). We are obligated to follow our own precedent and are duty bound to apply Ryan here. We conclude that the District Court, in its thorough and thoughtful opinions, correctly applied the doctrine to the facts of this case and we will therefore affirm its judgment in that regard.5
*268In so holding, we recognize that the Ryan doctrine is a “rough all-or-nothing device,” Cooper, 923 F.2d at 1051 (quoting Parfait v. Jahncke Serv., Inc., 484 F.2d 296, 302 (5th Cir.1973)), that often yields inequitable results, see Smith & Kelly Co. v. S/S Concordia TADJ, 718 F.2d 1022, 1029 (11th Cir.1983) (“Ryan-like indemnity creates great potential for injustice.”); cf. Bosnor, S.A. de C.V. v. Tug L.A. Barrios, 796 F.2d 776, 786 (5th Cir.1986) (noting, in a property damage case, that “[underlying policy considerations of uniformity and fairness ... support application of comparative fault principles rather than the all or nothing approach of Ryan ”). Indeed, the Supreme Court has retreated from similarly blunt rules in the tort context. For example, in United States v. Reliable Transfer Co., the Supreme Court abrogated the divided damages rule, which required ships involved in a collision to bear equal portions of the resulting damage, in favor of a more equitable rule allocating liability based upon fault. 421 U.S. 397, 398, 411, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975). In doing so, the Court observed that:
The rule of divided damages in admiralty has continued to prevail in this country by sheer inertia rather than by reason of any intrinsic merit. The reasons that originally led to the Court’s adoption of the rule have long since disappeared. The rule has been repeatedly criticized by experienced federal judges who have correctly pointed out that the result it works has too often been precisely the opposite of what the Court sought to achieve in [establishing the rule] — the ‘just and equitable’ allocation of damages.
421 U.S. at 410-11, 95 S.Ct. 1708. The same kind of comment could be made about the Ryan doctrine. It has been abrogated in its original context and the Supreme Court has permitted joint tort-feasors to seek contribution in maritime personal injury actions under most circumstances, see Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 109-10, 94 5.Ct. 2174, 40 L.Ed.2d 694 (1974), yet the doctrine lives on. It may very well be that Ryan indemnity has outlived its usefulness, but, since we are not sitting en banc, we have no authority to decline its application in the present context. Furthermore, the Supreme Court has not overruled Ryan in its entirety, despite the 1972 amendments to the LWHCA. Unless and until that happens, it appears that the doctrine will linger on, regardless of heavy criticism.
We will therefore affirm the District Court’s application of Ryan. However, since appellants concede that, if Ryan applies, Ingram is entitled to recover the $4,063.07 that it incurred defending itself in a related action in the United States District Court for the Southern District of Ohio,6 we will vacate the District Court’s *269ruling precluding Ingrain from recovering that sum, and remand with instructions to the District Court to amend its judgment accordingly.
. A ship is unseaworthy if it or its appurtenances are not "reasonably fit for their intended use.” Mitchell v. Trawler Racer, Inc., 362 U.S. 539. 550, 80 S.Ct. 926. 4 L.Ed.2d 941 (I960). A shipowner is subject to strict liability if it fails to provide a seaworthy ship. Id.
. Specifically, in Ryan, a shipowner had hired a stevedoring company for all of its stevedor-ing operations. 350 U.S. at 126, 76 S.Ct. 232. One of the stevedore’s longshoremen improperly stowed some cargo on a ship in South Carolina such that, when the ship arrived a few days later in New York, another longshoreman was injured by the cargo during the unloading of the ship. Id. The Supreme Court allowed the shipowner to recover indemnity from the stevedore on the theory that the parties' contract contained an implied warranty of workmanlike performance that was breached when the cargo was stowed unsafely. Id. at 133-34, 76 S.Ct. 232.
. The Jones Act allows a seaman to sue his employer for negligence. 46 U.S.C. § 30104. In order to qualify as a seaman, an individual must establish that he had an “employment-related connection to a vessel in navigation,” which requires that the employee's duties "contribute to the function of the vessel or to the accomplishment of its mission,” and that connection must be "substantial in terms of both its duration and its nature.” Chandris, Inc. v. Latsis, 515 U.S. 347, 368, 1 15 S.Ct. 2172, 132 L.Ed.2d 314 (1995) (quotations and alteration omitted).
. The District Court had jurisdiction over this matter pursuant to 28 U.S.C. § 1333. We have jurisdiction pursuant to 28 U.S.C. § 1291.
. We are unpersuaded by appellants’ argument that the Supreme Court's decision in Stevens v. The White City, 285 U.S. 195, 52 S.Ct. 347, 76 L.Ed. 699 (1932), precludes *268application of Ryan in the towing context. We also reject appellants' argument that Ingram is not entitled to indemnity simply because it successfully defended the unseaworthiness claims asserted against it. See Ellerman Lines, Ltd. v. Atl. & Gulf Stevedores, Inc., 339 F.2d 673, 674 (3d Cir.1964) ("If conduct of [the contractor] in violation of its warranty to [the shipowner] was the sole responsible cause of [the employee's] injury . .. the expense to which [the shipowner] is subjected in defending [the employee's] suit against it to recover for that injury is an element of damage caused by the [contractor's] breach of warranty, even if Lthe shipowner] succeeds in defeating [the employee's] claim.”).
. Specifically, appellants state: "As for Ingram's appeal for another $4,063.07, [appellants] oppose[ ] it only to the extent it is based on the Ryan doctrine, and do[ ] not otherwise challenge Ingram’s cross-appeal.” (Appellants' Fourth-Step Br. at 31.) | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479040/ | PER CURIAM:
Carlos Tolson Andrews seeks to appeal the district court’s order treating his Fed. R. Civ. P. 60(b) motion as a successive 28 U.S.C.A. § 2255 (West Supp.2009) motion, and dismissing it on that basis. The order is not appealable unless a circuit justice or judge issues a certifícate of appealability. 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir.2004). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A prisoner satisfies *329this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir.2001). We have independently reviewed the record and conclude that Andrews has not made the requisite showing. Accordingly, we deny Andrews’ motion for a certifícate of appealability and dismiss the appeal.
Additionally, we construe Andrews’ notice of appeal and informal brief as an application to file a second or successive motion under 28 U.S.C.A. § 2255. United States v. Winestock, 340 F.3d 200, 208 (4th Cir.2003). In order to obtain authorization to file a successive § 2255 motion, a prisoner must assert claims based on either: (1) newly discovered evidence, not previously discoverable by due diligence, that would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, previously unavailable, made retroactive by the Supreme Court to cases on collateral review. 28 U.S.C.A. § 2255(h) (West Supp.2009). Andrews’ claims do not satisfy either of these criteria. Therefore, we deny authorization to file a successive § 2255 motion. 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/8479042/ | PER CURIAM:
Kittrell Bernard Decator appeals the district court’s margin order denying De-cator’s “Motion to Dismiss Indictment Nunc Pro Tunc.” We have reviewed the record and find no reversible error. Accordingly, we affirm. United States v. Decator, No. 1:95-cr-00202-CCB-1 (D.Md. Dec. 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/8479044/ | PER CURIAM:
Thomas Leroy Alston appeals the district court’s order denying his motion for return of property, pursuant to Fed. R. Crim. P. 41(g). Alston does not contest the assertion of the United States that none of the disputed property is in its possession. Accordingly, we affirm the district court’s order. 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/8479046/ | PER CURIAM:
Jerome Addison seeks to appeal the district court’s order remanding his case to the magistrate judge for consideration of Addison’s motion to amend his complaint. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Addison 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/8479048/ | PER CURIAM:
Earl McCrae Scales appeals the district court’s order denying his motion for sentence reduction, pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Scales, No. 1:04-cr00337-JAB-1. 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/8479034/ | OPINION OF THE COURT
RENDELL, Circuit Judge.
Kevin Ortega and Edwin Molina are co-defendants who pled guilty to conspiring to distribute cocaine base. On appeal, Ortega challenges the District Court’s denial of his motion to withdraw his guilty plea and Molina challenges the District Court’s calculation of his sentencing guidelines. In the middle of their trial, both Ortega and Molina entered into plea agreements with the government that contained identical appellate waivers. The waivers bar all claims on appeal except those contending that (1) the defendant’s sentence exceeds the statutory maximum; (2) the sentencing judge erroneously departed upward from the sentencing guidelines; or (3) the sentencing judge imposed an unreasonable sentence above the sentencing guideline range. On appeal, neither defendant mentions, let alone challenges, the waiver, nor do they explain how their challenges fall within an exception to the waiver.
Molina contests the District Court’s calculation of his sentencing guideline range, specifically the Court’s application of a 2-point enhancement for obstruction of justice. Molina’s challenge is undoubtedly covered by the appellate waiver, as the waiver precludes appeals brought under 18 U.S.C. § 3742. See United States v. Price, 558 F.3d 270, 284 (3d Cir.2009). Molina does not contend that the waiver was not knowing and voluntary, that enforcing the waiver would result in a miscarriage of justice, or that his challenge to the District Court’s calculation of the guidelines falls under one of the three exceptions to the waiver. Molina’s claim is thus unreviewable on appeal. We will en*213force the waiver of appeal and AFFIRM Molina’s sentence.
Ortega contends that the District Court abused its discretion in denying his motion to withdraw his guilty plea. He asserts that we have jurisdiction to hear this appeal under 18 U.S.C., § 3742 and 28 U.S.C. § 1291. However, the appellate waiver in his plea agreement specifically states that he waives all rights to appeal or collaterally attack his conviction or sentence under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. Like Molina, Ortega makes no argument as to why this waiver does not apply. Therefore, we also decline to reach the merits of Ortega’s argument and will AFFIRM his conviction and sentence. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479041/ | PER CURIAM:
Kittrell Bernard Decator appeals the district court’s margin order denying De-cator’s “Motion to Dismiss Indictment Nunc Pro Tunc.” We have reviewed the record and find no reversible error. Accordingly, we affirm. United States v. Decator, No. 1:95-cr-00202-CCB-1 (D.Md. Dec. 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/8479043/ | PER CURIAM:
Thomas Leroy Alston appeals the district court’s order denying his motion for return of property, pursuant to Fed. R. Crim. P. 41(g). Alston does not contest the assertion of the United States that none of the disputed property is in its possession. Accordingly, we affirm the district court’s order. 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/8479047/ | PER CURIAM:
Earl McCrae Scales appeals the district court’s order denying his motion for sentence reduction, pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Scales, No. 1:04-cr00337-JAB-1. 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/8479049/ | PER CURIAM:
Corey Michael Leftwich seeks to appeal the district court’s order construing his motion for an evidentiary hearing as a successive 28 U.S.C.A. § 2255 (West Supp. 2009) motion and dismissing it on that basis. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Leftwich, No. 4:00-cr-00037-H-1 (E.D.N.C. filed Dec. 16, 2009; entered Dec. 17, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479051/ | PER CURIAM:
Claude and Lori Holland, husband and wife, filed suit against Defendants alleging state and federal law causes of action relating to Claude’s suspension and termination from his position with the Wicomico County Sheriffs Office. The district court granted summary judgment for Defendants finding the Hollands’ claims were barred by res judicata. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Holland v. Maryland, No. 1:07-cv-03040-AMD (D.Md. Dec. 5, 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/8479053/ | PER CURIAM:
Ralph E. Johnson, Jr., and Virginia Dar-den appeal the district court’s order dismissing their complaint as frivolous and for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(i), (ii) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Johnson v. Boone, No. 3:09-cv-00808-HEH (E.D.Va. Dec. 23, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479058/ | PER CURIAM:
John Kojo Shoetan, a native and citizen of Ghana, petitions for review of an order of the Board of Immigration Appeals (“Board”) dismissing his appeal from the immigration judge’s order and finding *340Shoetan was an arriving alien and that the immigration judge did not have jurisdiction to consider his application for adjustment of status. Accordingly, because Shoetan had no other applications for relief pending before the immigration judge, the order of removal stands.
We have reviewed the record and the amended regulations pertinent to Shoe-tan’s claim and deny the petition for review. See Brito v. Mukasey, 521 F.3d 160, 167-68 (2d Cir.2008); Chambers v. Mukasey, 520 F.3d 445, 450 (5th Cir.2008). We also deny the motion to place the petition for review in abeyance. 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/8479060/ | PER CURIAM:
Herbert A. Considder appeals the district court’s order dismissing his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) (2006) 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. Considder v. Medicare, No. 3:09-cv-00049-nkm (W.D.Va. Aug. 3, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479052/ | PER CURIAM:
Claude and Lori Holland, husband and wife, filed suit against Defendants alleging state and federal law causes of action relating to Claude’s suspension and termination from his position with the Wicomico County Sheriffs Office. The district court granted summary judgment for Defendants finding the Hollands’ claims were barred by res judicata. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Holland v. Maryland, No. 1:07-cv-03040-AMD (D.Md. Dec. 5, 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/8479054/ | PER CURIAM:
Ralph E. Johnson, Jr., and Virginia Dar-den appeal the district court’s order dismissing their complaint as frivolous and for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(i), (ii) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Johnson v. Boone, No. 3:09-cv-00808-HEH (E.D.Va. Dec. 23, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479056/ | PER CURIAM:
Herman Whaling seeks review of the Benefits Review Board’s decision and order affirming the administrative law judge’s denial of black lung benefits pursuant to 30 U.S.C. §§ 901-945 (2006). Our review of the record discloses that the Board’s decision is based upon substantial evidence and is without reversible error. Accordingly, we deny the petition for review for the reasons stated by the Board. Whaling v. Eastern Associated Coal Corp., No. 08-0115-BLA. 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/8479057/ | PER CURIAM:
John Kojo Shoetan, a native and citizen of Ghana, petitions for review of an order of the Board of Immigration Appeals (“Board”) dismissing his appeal from the immigration judge’s order and finding *340Shoetan was an arriving alien and that the immigration judge did not have jurisdiction to consider his application for adjustment of status. Accordingly, because Shoetan had no other applications for relief pending before the immigration judge, the order of removal stands.
We have reviewed the record and the amended regulations pertinent to Shoe-tan’s claim and deny the petition for review. See Brito v. Mukasey, 521 F.3d 160, 167-68 (2d Cir.2008); Chambers v. Mukasey, 520 F.3d 445, 450 (5th Cir.2008). We also deny the motion to place the petition for review in abeyance. 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/8479059/ | PER CURIAM:
Herbert A. Considder appeals the district court’s order dismissing his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) (2006) 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. Considder v. Medicare, No. 3:09-cv-00049-nkm (W.D.Va. Aug. 3, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479061/ | PER CURIAM:
Clarence Easter appeals the district court’s order granting his 18 U.S.C. § 3582(c)(2) (2006) motion for reduction of sentence and asserts that he should have received the specific reduction he sought. We have reviewed the record and find no reversible error. Accordingly, we affirm. See U.S. Sentencing Guidelines Manual § 1B1.10, p.s. (“The authorization of such a discretionary reduction ... does not entitle a defendant to a reduced term of imprisonment as a matter of right.”); see also United States v. Stewart, 595 F.3d 197, 204 (4th Cir.2010) (declining to determine that defendant was automatically entitled to a specific sentence reduction and noting that discretion to evaluate the policy and circumstances is vested in the district court). 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/8479064/ | PER CURIAM:
Felicia Gay Camper appeals the district court’s order accepting the recommendation of the magistrate judge to deny her summary judgment motion and to grant the Commissioner’s summary judgment motion in her action seeking review of the Commissioner’s decision to deny her Supplemental Security Income under the Social Security Act. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Camper v. Comm’r, No. 4:08-cv-00069-JBF-FBS (E.D. Va. filed May 6, 2009; entered May 7, 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/8479084/ | PER CURIAM: *
The Federal Public Defender appointed to represent Jose Ortiz 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). Ortiz has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further 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/8479065/ | PER CURIAM:
Marty Lorenzo Wright appeals the district court’s order entered on December 10, 2009, denying his “Letter/Motion In The Interest of Justice.” In Wright’s “Letter/Motion” he appears to seek reconsideration of the court’s July 15, 2009 order, which granted him a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2) (2006). See United States v. Wright, No. 4:95-cr-00039-TEM-TEM-1 (E.D.Va. July 15, 2009). We have reviewed the record and find no reversible error in the district court’s denial of Wright’s motion to reconsider. Accordingly, we affirm. See United States v. Goodwyn, 596 F.3d 233, 234-36 (4th Cir.2010) (holding that district court lacked authority to grant defendant’s motion to reconsider, filed eight months after the district court’s order ruling on original § 3582(c)(2) motion). 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/8479068/ | PER CURIAM:
Warren Chase appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we deny Chase’s motion for injunctive relief and affirm for the reasons stated by the district court. See Chase v. The Prior and Present DOC Commissioners, No. 1:08-cv-00834-CCB (D.Md. Dec. 2, 2009). We note Chase failed to indicate in his complaint that any specific Defendant acted with deliberate indifference to his serious needs. See Smith v. Ozmint, 578 F.3d 246, 255 (4th Cir.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/8479074/ | PER CURIAM:
Damian Giovanni Bey appeals a district court order denying his motion for a sentence reduction filed under 18 U.S.C. § 3582(c) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Bey, No. 5:03-cr-00252-BR-1, 2009 WL 2767023 (E.D.N.C. Aug. 27, 2009). We also deny Bey’s motion to hold his appeal in abeyance pending the United States Supreme Court’s decision in United States v. Dillon, No. 09-6338. 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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479076/ | PER CURIAM:
William Berry Coleman appeals the district court’s order denying relief on his 18 U.S.C. § 3582(e)(2) (2006) motion. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Coleman, No. 3:01-cr-00093-RLV-1 (W.D.N.C. April 24, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479077/ | PER CURIAM:
Serwah Kanu appeals the district court’s order granting Defendants’ motion pursuant to Fed.R.Civ.P. 12(c) and dismissing Kanu’s civil action alleging intentional infliction of emotional distress. We have reviewed the record and agree that Kanu’s complaint fails to state a claim for this cause of action. See Womack v. Eldridge, 215 Va. 338, 342, 210 S.E.2d 145 (1974). Accordingly, we affirm the district court’s order of dismissal. Kanu v. 00204 GLC, No. 1:09-cv-00726-CMH-IDD (E.D.Va. Aug. 14, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479080/ | PER CURIAM: *
About fifteen years ago, Dr. Theodore Knatt began providing orthopedic surgery services to patients of Lane Memorial Hospital in Zachary, Louisiana. He struck out on his own in 2001 to develop a physician-owned surgical facility, but continued seeing patients at Lane. In 2002, Lane summarily suspended Knatt from medical staff privileges for twenty-one days. These privileges were later reinstated, and the summary suspension was removed from his record.
In 2003, Knatt filed the first of two lawsuits against Lane and several of its agents and employees in state court, asserting eleven claims that arose out of the events leading up to his suspension, including claims under the Louisiana Unfair Trade Practices and Consumer Protection Act (LUTPA).1 The defendants removed the case to federal court pursuant to 28 U.S.C. § 1441(c), which allows removal of an “entire case” when it includes at least one claim over which the federal district court has original jurisdiction.2 Knatt later attempted to amend his complaint to allege a conspiracy to destroy his business by constructively evicting him from office space that he leased from Lane. The district court denied the motion to amend and Knatt instead filed a second lawsuit in state court, alleging breach of contract, wrongful eviction, unfair trade practices, and discrimination. The defendants removed this action, too, and the district court consolidated Knatt’s lawsuits into one. Then, in a series of decisions, the district court dismissed all of Knatt’s claims except three state-law contract and *441tortious interference claims, which it remanded to state court.
In two opinions — in 2008 and 20093 — we affirmed these dismissals save for Knatt’s LUTPA claims, which we sent back to the district court for consideration along with the other remaining state-law claims. We reasoned:
The application of LUTPA to all of the defendants ... presents difficult issues of state law. As we uphold summary judgment on all of Knatt’s federal claims, only state law claims remain. We therefore vacate the district court’s dismissal of Knatt’s LUTPA claims and remand for reconsideration to determine if, in comity, the district court should decline to exercise jurisdiction over these claims.4
And, though we found “no error or abuse of discretion in the district court’s remand” of the remaining state-law claims to state court, we vacated that remand order and instructed the district court to take up the issue again. This time the district court was to “consider all of the. state law claims together, including the ... LUTPA claim.”5
So, left without a single federal claim despite several years in the federal system, Knatt moved for remand to state court. The district court, disagreeing with a magistrate’s recommendation, granted the motion and the defendants now appeal that order, seeking to keep Knatt’s lawsuit in federal court.
I
At the start, Knatt contends that we lack jurisdiction to consider the defendants’ appeal altogether. He argues that the district court was obliged to remand the state-law claims to state court because it lacked subject matter jurisdiction over them and that we accordingly lack appellate jurisdiction to review the remand order.6 Knatt is mistaken.
It is undisputed that when this case was removed to federal court, the district court had original jurisdiction over Knatt’s federal claims, as well as supplemental jurisdiction over his state-law claims because they were “so related to claims in the action within such original jurisdiction that they form[ed] part of the same case or controversy under Article III of the United States Constitution.”7 The subsequent dismissal of all federal claims from Knatt’s suit did not divest the district court of supplemental jurisdiction over the remaining state-law claims.8 Rather, the court retained its statutory supplemental jurisdiction over those claims and “[i]ts decision declining to exercise that statutory authority was not based on a jurisdictional defect but on its discretionary choice not to hear the claims despite its subject-matter jurisdiction over them.”9
*442Our prior instructions in this case plainly contemplate that the district court would employ discretion in making a remand determination.10 And on its face the district court’s order is an exercise of discretion. Because the district court had jurisdiction and retained discretion to adjudicate the state-law claims, we have appellate jurisdiction to review its decision.
II
Our review is for abuse of discretion 11 and is guided by the statutory factors set forth in 28 U.S.C. § 1367(c) as well as the common law factors of judicial economy, convenience, fairness, and comity.12 Section 1367 authorizes a court to decline supplemental jurisdiction over a state-law claim if: “(1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.” 13 These interests are to be considered on a case-by-case basis and no single factor is dispositive.14
A
In this case, section 1367’s first and third factors weigh in favor of declining jurisdiction. In fact, when a district court eliminates all federal claims before trial— as the district court did in this case — the “general rule” is that it should then decline to exercise jurisdiction over any remaining state-law claims.15 That said, “this rule is neither mandatory nor absolute,”16 and here there are other relevant concerns that we must address.
B
Most compelling in favor of remand to state court is the presence of a “novel and complex issue of state law” involving LUT-PA.17 As we noted, a previous panel of this court has already explained that LUT-PA’s application to the facts of this case “presents difficult issues of state law” because it continues to divide Louisiana appellate panels, without resolution from the *443state’s high court.18 More specifically, although “Knatt argues that all of the other defendants were co-conspirators with [the hospital], and that he has standing to sue them,” Louisiana courts “are split over whether co-conspirators may be sued under LUTPA.” 19 The defendants have put forth no convincing argument to the contrary.
C
Without support from section 1367, then, the defendants turn to the common law, urging that adjudication of the remaining state claims in federal court will best serve the interests of judicial economy, convenience, and fairness. In support, they point to the fact that the parties have produced “over 7000 pages of discovery” and deposed twenty-nine witnesses. It is true that “the amount of judicial resources that the case has consumed” is relevant to our analysis, but that accounting is “most important ... as an indication of the familiarity of the forum with the case and its ability to resolve the dispute efficiently.”20 And here, despite the magistrate judge’s involvement in overseeing discovery, “there is no indication that the district judge ha[s] substantial familiarity with the merits of the case.”21 The parties have not yet filed motions in limine, the district court has not ruled on the admissibility of any significant amount of evidence, the parties have yet to brief the remaining state law issues on the merits, and no trial date has been set.22 As the district court put it, the case — whittled to the few remaining state claims — has “only recently ‘re-started’ ” and “trial is not imminent.” Nor do the defendants contend that the discovery conducted in federal court will be unusable in subsequent state proceed*444ings.23
D
Finally, the defendants argue that maintenance in federal court is appropriate because they may benefit from a federal defense. In particular, the defendants contend that they are each entitled to qualified immunity under the federal Health Care Quality Improvement Act (HCQIA).24 Because the willingness of medical professionals to review the performance of their peers is essential to policing the quality of health care in this country, HCQIA grants “limited immunity from suits for money damages to participants in professional peer review actions.” 25
Like the other claims remaining in this case, the parties did not brief the HCQIA issue in the district court, although the defendants now attempt to persuade us on appeal that the defense does indeed apply. It might, but without the benefit of a district court decision and briefing on the subject, we cannot be sure. For one, Knatt’s remaining claims, though centered on the hospital’s peer review that resulted in his summary dismissal, stretch beyond that review action — albeit somewhat marginally. It remains a possibility, then, that at least some of Knatt’s factual allegations and claims fall outside the protection of the federal defense.
And, even if HCQIA could provide total resolution in this case, it would be odd to allow the mere potential for a federal defense to defeat the discretionary remand of state-law claims to a state court. The defendants do not contend that the Act falls under the complete preemption exception to the well-pleaded complaint rule and thus do not urge that it would have allowed them to remove the case to federal court in the first instance — rather than contest remand from federal court.26 Although not a dispositive observation in this case, it is telling nonetheless.
All of this is to say that the district court will be no more familiar with the arguments associated with the defense than any given state court. For a court to decide the issue, more briefing and argument is required, regardless of venue.
Ill
After dismissing the claims that originally provided federal jurisdiction, the district court did not abuse its discretion in finding no compelling reason to maintain the dispute in the federal system.
AFFIRMED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
. LaRev.Stat. Ann. § 51:1401, et. seq., and 42 U.S.C. §§ 1983 and 1985.
. 28 U.S.C. § 1441(c).
. Knatt v. Hosp. Serv. Dist. No. 1 of East Baton Rouge Parish (Knatt II), 327 Fed.Appx. 472 (5th Cir.2009) (unpublished); Knatt v. Hosp. Serv. Dist. No. 1 of E. Baton Rouge Parish ( Knatt I), 289 Fed.Appx. 22 (5th Cir.2008) (unpublished).
. Knatt II, 327 Fed.Appx. at 480.
. Id. at 487.
. See 28 U.S.C. §§ 1447(c) and (d). See also Carlsbad Tech., Inc. v. HIF Bio, Inc., - U.S. -, 129 S.Ct. 1862, 1866, 173 L.Ed.2d 843 (2009) (citing Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711-12, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996)).
. See 28 U.S.C. § 1367(a).
. Carlsbad Tech., 129 S.Ct. at 1867.
. Id. (citing Chicago v. Int’l College of Surgeons, 522 U.S. 156, 173, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997)) (emphasis added).
. Knatt II, 327 Fed.Appx. at 480 (citing 28 U.S.C § 1367(c) and the discretionary factors of judicial economy, convenience, fairness, and comity).
. Brookshire Bros. Holding, Inc. v. Dayco Prods., Inc., 354 F.3d 595, 601-02 (5th Cir.2009) (citing Mendoza v. Murphy, 532 F.3d 342, 346 (5th Cir.2008)).
. Id. (citing Mendoza, 532 F.3d at 346).
. 28 U.S.C. § 1367(c).
. Brookshire Bros., 554 F.3d at 602.
. Id.
. Id.
. 28 U.S.C. § 1367(c). Compare Parker & Parsley Petroleum Co. v. Dresser Indus., 972 F.2d 580, 587 (5th Cir.1992) (reversing the district court's decision to retain supplemental jurisdiction in part because the remaining state issues were difficult), with Brookshire Brothers, 554 F.3d at 602 (explaining that “the remaining state-law issues in this case do not appear to be particularly novel or complex” and then deciding to retain federal jurisdiction), Smith v. Amedisys, Inc., 298 F.3d 434, 447 (5th Cir.2002) (affirming the district court's decision to retain supplemental jurisdiction because the remaining issues were not complex), and Newport Ltd. v. Sears, Roebuck & Co., 941 F.2d 302, 308 (5th Cir.1991) (approving of the district court's decision to retain supplemental jurisdiction even though “the matters remaining in this lawsuit are solely questions of state law” because they "present no novel or especially unusual questions”).
. Knatt II, 327 Fed.Appx. at 480.
. Id. Compare Vermilion Hosp., Inc. v. Patout, 906 So.2d 688, 692 (La.App. 3d Cir.2005) (not allowing conspirators to be sued), with Strahan v. State, 645 So.2d 1162, 1165 (La. App. 1st Cir. 1994) (holding that the state, a non-competitor, could be sued for conspiring with a competitor), and S. Tool & Supply, Inc. v. Beerman Precision, Inc., 862 So.2d 271, 276 (La.App. 4th Cir.2003) (finding that a supplier was liable to a distributor for “acting in concert'' with two other distributors).
. Parker, 972 F.2d at 587. See also Waste Sys., Inc. v. Rollins Envtl. Servs., Inc., 683 F.2d 927, 928 (5th Cir.1982) ("[Tjhere are no compelling reasons of judicial efficiency and economy justifying the district court’s retention of jurisdiction. The action has not been tried. The issues involve complex problems of Louisiana law best suited for decision by a Louisiana court. Despite the age of the case, little litigation progress has been made. Whatever discovery has been accomplished can be preserved for use in state court. Under these circumstances ... it would be an abuse of that discretion for a federal court to exercise it.”).
. Id. (emphasis added).
. This situation is very different from the one we examined in Brookshire Brothers Holding, Inc. v. Dayco Products, Inc., 554 F.3d 595 (5th Cir.2009). In that case, we held that the district court had abused its discretion in remanding state-law claims to state court after those claims spent three years in federal court. Id. at 603-04. While Knatt and the defendants here have been in federal court for longer, the litigation in Brookshire Brothers proceeded at a much faster clip and with fewer interruptions. Id. at 598. There, the litigation "generatfed] more than 1,300 entries in the district court docket,” while the “district court decided forty-one dispositive motions, fourteen Daubert motions, and seven other motions in limine." Id. Moreover, “[d|iscovery had closed and the parties were making final preparations for trial.” Id. Conversely in this case, discovery remains unfinished and the district court has not calendared a trial or decided any Daubert motions or motions in limine. And, despite several years in district court, the case has generated fewer than 350 docket entries.
. See Parker, 972 F.2d at 587 (affirming the district court's remand of supplemental state claims where "the parlies would not have to repeat the effort and expense of the discovery process” under Texas law); Waste Sys., Inc., 683 F.2d at 931 (same under Louisiana law).
. 42 U.S.C. § 11101 ei seq.
. Poliner v. Tex. Health Sys., 537 F.3d 368, 376 (5th Cir.2008) (quoting Mathews v. Lancaster Gen. Hosp., 87 F.3d 624, 632 (3d Cir.1996)) (quotation marks omitted).
. See Zamanian v. Christian Health Ministry, No. 94-1781, 1994 WL 396179, 1994 U.S. Dist. LEXIS 10350 (E.D.La.1994) (unpublished) (holding that HCQIA does not satisfy the complete preemption exception). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479081/ | PER CURIAM: *
The Federal Public Defender appointed to represent Defendant-Appellant Joel Mendoza-Mata 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). Mendoza-Mata has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous is*468sue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the consolidated APPEALS ARE 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/8479066/ | PER CURIAM:
Marty Lorenzo Wright appeals the district court’s order entered on December 10, 2009, denying his “Letter/Motion In The Interest of Justice.” In Wright’s “Letter/Motion” he appears to seek reconsideration of the court’s July 15, 2009 order, which granted him a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2) (2006). See United States v. Wright, No. 4:95-cr-00039-TEM-TEM-1 (E.D.Va. July 15, 2009). We have reviewed the record and find no reversible error in the district court’s denial of Wright’s motion to reconsider. Accordingly, we affirm. See United States v. Goodwyn, 596 F.3d 233, 234-36 (4th Cir.2010) (holding that district court lacked authority to grant defendant’s motion to reconsider, filed eight months after the district court’s order ruling on original § 3582(c)(2) motion). 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/8479067/ | PER CURIAM:
Warren Chase appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we deny Chase’s motion for injunctive relief and affirm for the reasons stated by the district court. See Chase v. The Prior and Present DOC Commissioners, No. 1:08-cv-00834-CCB (D.Md. Dec. 2, 2009). We note Chase failed to indicate in his complaint that any specific Defendant acted with deliberate indifference to his serious needs. See Smith v. Ozmint, 578 F.3d 246, 255 (4th Cir.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/8479070/ | PER CURIAM:
Justin Hawkins appeals the district court’s order granting his motion filed pursuant to 18 U.S.C. § 3582(c)(2) (2006), which sought a reduction in sentence based upon the amendments to the crack cocaine sentencing guidelines. We have reviewed the record and find no reversible error. Accordingly, we affirm. United States v. Hawkins, No. 5:98-cr-00016-BO-1 (E.D.N.C. filed Oct. 30, 2009 & entered Nov. 1, 2009). We deny Hawkins’ motion to appoint counsel 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/8479071/ | PER CURIAM:
John Robert Demos, Jr., appeals the district court’s order dismissing this action under 28 U.S.C. § 1915(g) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Demos v. United States, No. 1:09-cv-03205-CCB (D.Md. Dec. 23, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479075/ | PER CURIAM:
William Berry Coleman appeals the district court’s order denying relief on his 18 U.S.C. § 3582(e)(2) (2006) motion. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Coleman, No. 3:01-cr-00093-RLV-1 (W.D.N.C. April 24, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479078/ | PER CURIAM:
Serwah Kanu appeals the district court’s order granting Defendants’ motion pursuant to Fed.R.Civ.P. 12(c) and dismissing Kanu’s civil action alleging intentional infliction of emotional distress. We have reviewed the record and agree that Kanu’s complaint fails to state a claim for this cause of action. See Womack v. Eldridge, 215 Va. 338, 342, 210 S.E.2d 145 (1974). Accordingly, we affirm the district court’s order of dismissal. Kanu v. 00204 GLC, No. 1:09-cv-00726-CMH-IDD (E.D.Va. Aug. 14, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479079/ | PER CURIAM: *
About fifteen years ago, Dr. Theodore Knatt began providing orthopedic surgery services to patients of Lane Memorial Hospital in Zachary, Louisiana. He struck out on his own in 2001 to develop a physician-owned surgical facility, but continued seeing patients at Lane. In 2002, Lane summarily suspended Knatt from medical staff privileges for twenty-one days. These privileges were later reinstated, and the summary suspension was removed from his record.
In 2003, Knatt filed the first of two lawsuits against Lane and several of its agents and employees in state court, asserting eleven claims that arose out of the events leading up to his suspension, including claims under the Louisiana Unfair Trade Practices and Consumer Protection Act (LUTPA).1 The defendants removed the case to federal court pursuant to 28 U.S.C. § 1441(c), which allows removal of an “entire case” when it includes at least one claim over which the federal district court has original jurisdiction.2 Knatt later attempted to amend his complaint to allege a conspiracy to destroy his business by constructively evicting him from office space that he leased from Lane. The district court denied the motion to amend and Knatt instead filed a second lawsuit in state court, alleging breach of contract, wrongful eviction, unfair trade practices, and discrimination. The defendants removed this action, too, and the district court consolidated Knatt’s lawsuits into one. Then, in a series of decisions, the district court dismissed all of Knatt’s claims except three state-law contract and *441tortious interference claims, which it remanded to state court.
In two opinions — in 2008 and 20093 — we affirmed these dismissals save for Knatt’s LUTPA claims, which we sent back to the district court for consideration along with the other remaining state-law claims. We reasoned:
The application of LUTPA to all of the defendants ... presents difficult issues of state law. As we uphold summary judgment on all of Knatt’s federal claims, only state law claims remain. We therefore vacate the district court’s dismissal of Knatt’s LUTPA claims and remand for reconsideration to determine if, in comity, the district court should decline to exercise jurisdiction over these claims.4
And, though we found “no error or abuse of discretion in the district court’s remand” of the remaining state-law claims to state court, we vacated that remand order and instructed the district court to take up the issue again. This time the district court was to “consider all of the. state law claims together, including the ... LUTPA claim.”5
So, left without a single federal claim despite several years in the federal system, Knatt moved for remand to state court. The district court, disagreeing with a magistrate’s recommendation, granted the motion and the defendants now appeal that order, seeking to keep Knatt’s lawsuit in federal court.
I
At the start, Knatt contends that we lack jurisdiction to consider the defendants’ appeal altogether. He argues that the district court was obliged to remand the state-law claims to state court because it lacked subject matter jurisdiction over them and that we accordingly lack appellate jurisdiction to review the remand order.6 Knatt is mistaken.
It is undisputed that when this case was removed to federal court, the district court had original jurisdiction over Knatt’s federal claims, as well as supplemental jurisdiction over his state-law claims because they were “so related to claims in the action within such original jurisdiction that they form[ed] part of the same case or controversy under Article III of the United States Constitution.”7 The subsequent dismissal of all federal claims from Knatt’s suit did not divest the district court of supplemental jurisdiction over the remaining state-law claims.8 Rather, the court retained its statutory supplemental jurisdiction over those claims and “[i]ts decision declining to exercise that statutory authority was not based on a jurisdictional defect but on its discretionary choice not to hear the claims despite its subject-matter jurisdiction over them.”9
*442Our prior instructions in this case plainly contemplate that the district court would employ discretion in making a remand determination.10 And on its face the district court’s order is an exercise of discretion. Because the district court had jurisdiction and retained discretion to adjudicate the state-law claims, we have appellate jurisdiction to review its decision.
II
Our review is for abuse of discretion 11 and is guided by the statutory factors set forth in 28 U.S.C. § 1367(c) as well as the common law factors of judicial economy, convenience, fairness, and comity.12 Section 1367 authorizes a court to decline supplemental jurisdiction over a state-law claim if: “(1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.” 13 These interests are to be considered on a case-by-case basis and no single factor is dispositive.14
A
In this case, section 1367’s first and third factors weigh in favor of declining jurisdiction. In fact, when a district court eliminates all federal claims before trial— as the district court did in this case — the “general rule” is that it should then decline to exercise jurisdiction over any remaining state-law claims.15 That said, “this rule is neither mandatory nor absolute,”16 and here there are other relevant concerns that we must address.
B
Most compelling in favor of remand to state court is the presence of a “novel and complex issue of state law” involving LUT-PA.17 As we noted, a previous panel of this court has already explained that LUT-PA’s application to the facts of this case “presents difficult issues of state law” because it continues to divide Louisiana appellate panels, without resolution from the *443state’s high court.18 More specifically, although “Knatt argues that all of the other defendants were co-conspirators with [the hospital], and that he has standing to sue them,” Louisiana courts “are split over whether co-conspirators may be sued under LUTPA.” 19 The defendants have put forth no convincing argument to the contrary.
C
Without support from section 1367, then, the defendants turn to the common law, urging that adjudication of the remaining state claims in federal court will best serve the interests of judicial economy, convenience, and fairness. In support, they point to the fact that the parties have produced “over 7000 pages of discovery” and deposed twenty-nine witnesses. It is true that “the amount of judicial resources that the case has consumed” is relevant to our analysis, but that accounting is “most important ... as an indication of the familiarity of the forum with the case and its ability to resolve the dispute efficiently.”20 And here, despite the magistrate judge’s involvement in overseeing discovery, “there is no indication that the district judge ha[s] substantial familiarity with the merits of the case.”21 The parties have not yet filed motions in limine, the district court has not ruled on the admissibility of any significant amount of evidence, the parties have yet to brief the remaining state law issues on the merits, and no trial date has been set.22 As the district court put it, the case — whittled to the few remaining state claims — has “only recently ‘re-started’ ” and “trial is not imminent.” Nor do the defendants contend that the discovery conducted in federal court will be unusable in subsequent state proceed*444ings.23
D
Finally, the defendants argue that maintenance in federal court is appropriate because they may benefit from a federal defense. In particular, the defendants contend that they are each entitled to qualified immunity under the federal Health Care Quality Improvement Act (HCQIA).24 Because the willingness of medical professionals to review the performance of their peers is essential to policing the quality of health care in this country, HCQIA grants “limited immunity from suits for money damages to participants in professional peer review actions.” 25
Like the other claims remaining in this case, the parties did not brief the HCQIA issue in the district court, although the defendants now attempt to persuade us on appeal that the defense does indeed apply. It might, but without the benefit of a district court decision and briefing on the subject, we cannot be sure. For one, Knatt’s remaining claims, though centered on the hospital’s peer review that resulted in his summary dismissal, stretch beyond that review action — albeit somewhat marginally. It remains a possibility, then, that at least some of Knatt’s factual allegations and claims fall outside the protection of the federal defense.
And, even if HCQIA could provide total resolution in this case, it would be odd to allow the mere potential for a federal defense to defeat the discretionary remand of state-law claims to a state court. The defendants do not contend that the Act falls under the complete preemption exception to the well-pleaded complaint rule and thus do not urge that it would have allowed them to remove the case to federal court in the first instance — rather than contest remand from federal court.26 Although not a dispositive observation in this case, it is telling nonetheless.
All of this is to say that the district court will be no more familiar with the arguments associated with the defense than any given state court. For a court to decide the issue, more briefing and argument is required, regardless of venue.
Ill
After dismissing the claims that originally provided federal jurisdiction, the district court did not abuse its discretion in finding no compelling reason to maintain the dispute in the federal system.
AFFIRMED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
. LaRev.Stat. Ann. § 51:1401, et. seq., and 42 U.S.C. §§ 1983 and 1985.
. 28 U.S.C. § 1441(c).
. Knatt v. Hosp. Serv. Dist. No. 1 of East Baton Rouge Parish (Knatt II), 327 Fed.Appx. 472 (5th Cir.2009) (unpublished); Knatt v. Hosp. Serv. Dist. No. 1 of E. Baton Rouge Parish ( Knatt I), 289 Fed.Appx. 22 (5th Cir.2008) (unpublished).
. Knatt II, 327 Fed.Appx. at 480.
. Id. at 487.
. See 28 U.S.C. §§ 1447(c) and (d). See also Carlsbad Tech., Inc. v. HIF Bio, Inc., - U.S. -, 129 S.Ct. 1862, 1866, 173 L.Ed.2d 843 (2009) (citing Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711-12, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996)).
. See 28 U.S.C. § 1367(a).
. Carlsbad Tech., 129 S.Ct. at 1867.
. Id. (citing Chicago v. Int’l College of Surgeons, 522 U.S. 156, 173, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997)) (emphasis added).
. Knatt II, 327 Fed.Appx. at 480 (citing 28 U.S.C § 1367(c) and the discretionary factors of judicial economy, convenience, fairness, and comity).
. Brookshire Bros. Holding, Inc. v. Dayco Prods., Inc., 354 F.3d 595, 601-02 (5th Cir.2009) (citing Mendoza v. Murphy, 532 F.3d 342, 346 (5th Cir.2008)).
. Id. (citing Mendoza, 532 F.3d at 346).
. 28 U.S.C. § 1367(c).
. Brookshire Bros., 554 F.3d at 602.
. Id.
. Id.
. 28 U.S.C. § 1367(c). Compare Parker & Parsley Petroleum Co. v. Dresser Indus., 972 F.2d 580, 587 (5th Cir.1992) (reversing the district court's decision to retain supplemental jurisdiction in part because the remaining state issues were difficult), with Brookshire Brothers, 554 F.3d at 602 (explaining that “the remaining state-law issues in this case do not appear to be particularly novel or complex” and then deciding to retain federal jurisdiction), Smith v. Amedisys, Inc., 298 F.3d 434, 447 (5th Cir.2002) (affirming the district court's decision to retain supplemental jurisdiction because the remaining issues were not complex), and Newport Ltd. v. Sears, Roebuck & Co., 941 F.2d 302, 308 (5th Cir.1991) (approving of the district court's decision to retain supplemental jurisdiction even though “the matters remaining in this lawsuit are solely questions of state law” because they "present no novel or especially unusual questions”).
. Knatt II, 327 Fed.Appx. at 480.
. Id. Compare Vermilion Hosp., Inc. v. Patout, 906 So.2d 688, 692 (La.App. 3d Cir.2005) (not allowing conspirators to be sued), with Strahan v. State, 645 So.2d 1162, 1165 (La. App. 1st Cir. 1994) (holding that the state, a non-competitor, could be sued for conspiring with a competitor), and S. Tool & Supply, Inc. v. Beerman Precision, Inc., 862 So.2d 271, 276 (La.App. 4th Cir.2003) (finding that a supplier was liable to a distributor for “acting in concert'' with two other distributors).
. Parker, 972 F.2d at 587. See also Waste Sys., Inc. v. Rollins Envtl. Servs., Inc., 683 F.2d 927, 928 (5th Cir.1982) ("[Tjhere are no compelling reasons of judicial efficiency and economy justifying the district court’s retention of jurisdiction. The action has not been tried. The issues involve complex problems of Louisiana law best suited for decision by a Louisiana court. Despite the age of the case, little litigation progress has been made. Whatever discovery has been accomplished can be preserved for use in state court. Under these circumstances ... it would be an abuse of that discretion for a federal court to exercise it.”).
. Id. (emphasis added).
. This situation is very different from the one we examined in Brookshire Brothers Holding, Inc. v. Dayco Products, Inc., 554 F.3d 595 (5th Cir.2009). In that case, we held that the district court had abused its discretion in remanding state-law claims to state court after those claims spent three years in federal court. Id. at 603-04. While Knatt and the defendants here have been in federal court for longer, the litigation in Brookshire Brothers proceeded at a much faster clip and with fewer interruptions. Id. at 598. There, the litigation "generatfed] more than 1,300 entries in the district court docket,” while the “district court decided forty-one dispositive motions, fourteen Daubert motions, and seven other motions in limine." Id. Moreover, “[d|iscovery had closed and the parties were making final preparations for trial.” Id. Conversely in this case, discovery remains unfinished and the district court has not calendared a trial or decided any Daubert motions or motions in limine. And, despite several years in district court, the case has generated fewer than 350 docket entries.
. See Parker, 972 F.2d at 587 (affirming the district court's remand of supplemental state claims where "the parlies would not have to repeat the effort and expense of the discovery process” under Texas law); Waste Sys., Inc., 683 F.2d at 931 (same under Louisiana law).
. 42 U.S.C. § 11101 ei seq.
. Poliner v. Tex. Health Sys., 537 F.3d 368, 376 (5th Cir.2008) (quoting Mathews v. Lancaster Gen. Hosp., 87 F.3d 624, 632 (3d Cir.1996)) (quotation marks omitted).
. See Zamanian v. Christian Health Ministry, No. 94-1781, 1994 WL 396179, 1994 U.S. Dist. LEXIS 10350 (E.D.La.1994) (unpublished) (holding that HCQIA does not satisfy the complete preemption exception). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479087/ | PER CURIAM: *
The attorney appointed to represent Yolanda Carrera 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). Carr-era has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5tii Cut. 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 5tii Cir R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479089/ | PER CURIAM: *
The attorney appointed to represent Raul Cruz-Vargas 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). Cruz-Vargas has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5tu 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 5tii Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479091/ | PER CURIAM: *
The attorney appointed to represent Horacio Baea-Rodriguez 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). Baca-Rodriguez has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further 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/8479096/ | PER CURIAM: *
The attorney appointed to represent Rodney Hammer 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). Hammer has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cut. 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/8479086/ | PER CURIAM: *
The Federal Public Defender appointed to represent Manuel Martinez-Reyes 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). Martinez-Reyes has *504hot filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further 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/8479088/ | PER CURIAM: *
The attorney appointed to represent Yolanda Carrera 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). Carr-era has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5tii Cut. 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 5tii Cir R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479092/ | PER CURIAM: *
The attorney appointed to represent Horacio Baea-Rodriguez 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). Baca-Rodriguez has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further 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/8479095/ | PER CURIAM: *
The attorney appointed to represent Rodney Hammer 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). Hammer has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cut. 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/8479098/ | PER CURIAM: *
The attorney appointed to represent Leslie Andre Thompson 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). Thompson has not filed a response. Our independent review of the record and counsel’s brief discloses no non-frivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479099/ | PER CURIAM: *
The attorney appointed to represent Juan Louis Patino has moved for leave to *520withdraw 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). Patino has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further 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 *520the 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/8479101/ | PER CURIAM: *
The attorney appointed to represent Juan Antonio Ruiz-Meza has moved for *528leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Ruiz-Meza has not filed a response. Our independent review of the record and counsel’s brief discloses no non-frivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5'm Cir R. 47.5, the court has determined that this opinion should not be *528published 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/8479104/ | ORDER
Javail Winston pleaded guilty without a plea agreement to one count of bank rob*595bery, admitting that a bank teller handed over $1,540 after he gave her a note threatening to kill her if she refused. See 18 U.S.C. § 2113(a). The district court sentenced him to 175 months’ imprisonment, well above his applicable guidelines range of 46 to 57 months. Winston filed a notice of appeal, but his appointed lawyers have concluded that the case is frivolous and seek to withdraw under Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We invited Winston to respond to counsel’s motion, though he did not. See Cir. R. 51(b). Because counsel’s brief is facially adequate, we limit our review to the potential issues he has identified. United States v. Cano-Rodriguez, 552 F.3d 637, 638 (7th Cir.2009) (per curiam); United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
This case marks Winston’s sixth bank robbery and tenth felony conviction. Between December 1980 and June 1981, Winston committed a series of four armed robberies yielding four convictions, two each in federal and state court. Winston added a fifth conviction, for escape, after he fled the state courthouse following his sentencing for the bank robberies. Even so, he was released from custody in October 1990, and about eight months later he embarked on another crime spree, robbing-two women and his fifth bank. For the bank robbery he was sentenced in federal court as a career offender to 168 months’ imprisonment, and for the other robberies he was sentenced in an Illinois court to a total of 11 years to run concurrently with the federal sentence. After his release in 2004, Winston was suspected of committing three additional bank robberies before he was arrested for his current offense in October 2007.
Despite this extensive criminal history, the probation officer calculated a total offense level of 21 and a category III criminal history, yielding an imprisonment range of just 46 to 57 months. That is because only four criminal history points total were assessed for the fifth bank robbery and a 2006 conviction for driving while intoxicated. Many of his other convictions were too old to count, and he also caught a very lucky break: neither of his most-recent state convictions for robbery were counted because those sentences were never reported to, or recorded in the records of, the Illinois Department of Corrections.
The government moved for an above-guidelines sentence, arguing that Winston’s criminal history category did not reflect the seriousness of his criminal past and the great likelihood of his recidivism. Although this time the career-offender guideline, U.S.S.G. § 4B1.1, did not apply, the government argued that Winston should be sentenced again as though he was a career offender within the range of 151 to 188 months. The government also urged the district court to assess a sentence longer than the 168 months Winston received for his fifth bank robbery, which had not been a sufficient deterrent.
Winston conceded that his category III criminal history under-represented his criminal history but argued that a sentence within the career-offender range would be too harsh. Instead, he proposed a sentence of 100 to 125 months in prison. Winston apologized for his actions and explained that his robbery was “an act of desperation” to prevent his family from being evicted from their home. The district court, however, noted the obvious pattern of behavior and how quickly Winston had resumed his criminal behavior after being released from prison. Incarceration, the court reasoned, was the only way to protect the public from Winston, and the court was convinced that the only reason Winston had not committed more robberies was because he was in prison most of *596his adult life. The court agreed with the government that the new term should exceed 168 months and imposed a sentence of 175 months’ imprisonment.
In their Anders submission counsel note that Winston wants his guilty plea set aside, so they examine the plea colloquy for a possible appellate claim. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002). But counsel have noticed only one shortcoming in the colloquy: the district court did not advise Winston of his right at trial to present evidence on his own behalf. See Fed.R.CrimP. 11(b)(1)(E). Because Winston did not move to withdraw his plea in the district court, our review would be for plain error. See United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Villarreal-Tamayo, 467 F.3d 630, 632 (7th Cir.2006).
It would be frivolous to argue that the district court committed plain error. The court essentially informed Winston of his right to present evidence when it explained that he could testify in his own defense and compel others to testify for him. And Winston cannot claim to be ignorant of that right because the information was covered in Winston’s written plea declaration, which he acknowledged having read and understood. See United States v. Blalock, 321 F.3d 686, 688-89 (7th Cir.2003); United States v. Driver, 242 F.3d 767, 771 (7th Cir.2001). Therefore, we would not find that this minor omission affected Winston’s decision to plead guilty. See United States v. Griffin, 521 F.3d 727, 730 (7th Cir.2008); United States v. Cross, 57 F.3d 588, 591 (7th Cir.1995).
Counsel also have considered arguing that Winston’s prison sentence, which is 118 months above his guidelines range, is unreasonably high. We would uphold as reasonable a sentence that exceeds the range recommended by the guidelines as long as the district court applies the factors set forth in 18 U.S.C. § 3553(a) and articulates an adequate statement of its reasons for imposing the sentence. See United States v. Hurt, 574 F.3d 439, 442 (7th Cir.2009); United States v. Wise, 556 F.3d 629, 632-33 (7th Cir.2009); United States v. Tockes, 530 F.3d 628, 632 (7th Cir.2008).
Counsel correctly conclude that this argument would be frivolous because the district court thoroughly analyzed the § 3553(a) factors and amply justified sentencing Winston to 175 months. The court explained that Winston’s professed financial hardship did not “lessen the violent impact that the crime undoubtedly had on the persons present during the bank robbery” and those in the surrounding community. The court recounted Winston’s pattern of robberies (several of which occurred while he was still on probation or parole) and the violent nature of his criminal history, and concluded that a guidelines range of 46 to 57 months would not adequately deter Winston from criminal behavior or protect the public when his prior 168-month sentence had failed to do so. And the court surmised that Winston’s criminal history score, which already under-represented his criminal record, would likely be even higher had Winston not been in prison from. 1992 to 2004 and thus prevented from committing other crimes during the 15-year period the guidelines look to for his criminal history. We have affirmed above-range sentences in similar cases where the defendant’s criminal history did not adequately account for his extensive criminal conduct. See United States v. Jackson, 576 F.3d 465, 470 (7th Cir.2009); United States v. Jackson, 547 F.3d 786, 793-94 (7th Cir.2008); United States v. McIntyre, 531 F.3d 481, 484 (7th Cir.2008) (per curiam); United *597States v. Valle, 458 F.3d 652 (7th Cir.2006). Moreover, although the district court did not address the clerical error that resulted in the two 1992 state robberies being excluded from Winston’s criminal history, this fluke would also be a reason for the district court to depart so far above the guidelines range. See McIntyre, 581 F.3d at 483-84. If these two robberies had been scored, Winston would have qualified as a career offender under § 4B1.1.
Finally, counsel consider whether Winston could challenge the district court’s failure to specify the number of drug tests he must undergo while on supervised release. The district court should have set the number of required drug tests. 18 U.S.C. § 3583(d); United States v. Bonanno, 146 F.3d 502, 511 (7th Cir.1998). But Winston said nothing about the omission at sentencing, and the error is not one that we would correct on plain-error review. See United States v. Harvey, 484 F.3d 453, 458-59 (7th Cir.2007); United States v. Tejeda, 476 F.3d 471, 475 (7th Cir.2007). Thus, we agree with counsel that it would be frivolous to raise this point on appeal.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479106/ | ORDER
Federal inmate Charles McIntosh pleaded guilty to one count of conspiring to distribute crack cocaine and was sentenced to 173 months’ imprisonment.1 In July 2009, after filing an unsuccessful motion for collateral relief under 28 U.S.C. § 2255, McIntosh filed a motion captioned as a “Bill of Review Atlas Motion.” The district court denied (rather than dismiss for lack of subject-matter jurisdiction) McIntosh’s motion, noting that he had not raised any issues that could be reviewed at that point in the proceedings and that the time for filing post-conviction motions for relief had already passed. McIntosh appeals, claiming that, under the holding of Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (1944), the district court always has authority to set aside or correct a judgment procured through fraud, which, he contends, was the nature of his motion. Specifically McIntosh argues, as he did in his earlier § 2255 motion, that the police, with the help of the prosecutor, submitted fraudulent affidavits and investigation reports to the state magistrate judge in order to obtain the warrants for his arrest and to search his house. We conclude that the district court did not have jurisdiction to consider McIntosh’s “Bill of Review Atlas Motion” because it should have been construed as an unauthorized successive § 2255 motion.
We first recount the procedural background. After his guilty plea, McIntosh never appealed his conviction or sentence. Instead, he filed his § 2255 motion in December 2007 — 14 months after the date of judgment — despite prior warnings from the district court that he must meet the one-year filing deadline. See 28 U.S.C. § 2255(f). In his motion McIntosh set forth four grounds for relief: a claim that, in violation of the Fourth Amendment, police submitted false affidavits to obtain the warrants for his arrest warrant and to search his house; a claim of prosecutorial misconduct alleging that the prosecutor conspired with police to knowingly submit false or fraudulent documents to the court; an insufficient-evidence claim; and a claim of ineffective assistance of counsel. The district court denied McIntosh’s motion as untimely, and McIntosh did not appeal that decision either.
The denial of his § 2255 motion did not, however, stop McIntosh from trying to find other ways to attack his conviction collaterally. He later filed a motion to dismiss his conspiracy conviction, alleging that all seven of the counts initially listed in his indictment (the conspiracy charge *599plus six drug-distribution counts) were duplicitous. The district court denied the motion, explaining that it was not only-untimely, but also constituted a second or successive § 2255 motion for which McIntosh had not obtained permission from this court to file. See 28 U.S.C. § 2244(b)(3).
McIntosh’s “Bill of Review Atlas Motion” is his latest attempt to challenge his conspiracy conviction on the basis of the “fraudulent” warrant application. He invokes the Hazel-Atlas case, in which the Supreme Court held that federal courts possess the inherent power to vacate a judgment obtained by fraud on the court. The government responds that, while the district court possesses such power in general, § 2244(b)(3) nonetheless constrains the court to construe the “Bill of Review” as another successive § 2255 motion because it raises the same claims of fraud as he did in his prior, untimely § 2255 motion.
“[I]t is the substance of the petitioner’s motion that controls how his request for relief shall be treated.” United States v. Carraway, 478 F.3d 845, 848 (7th Cir.2007). The substance of McIntosh’s post-judgment motion is a request for relief from the underlying criminal judgment. Such a request, regardless of its caption, requires advance authorization from the court of appeals where, as here, its substance attacks the constitutional validity of the criminal judgment on the merits. Gonzalez v. Crosby, 545 U.S. 524, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005); see also § 2255(h); § 2244(b)(3); Nunez v. United States, 96 F.3d 990, 991 (7th Cir.1996). Because he did not obtain the necessary authorization, the district court lacked jurisdiction to consider his motion. See Jackson v. United States, 463 F.3d 635, 639-40 (7th Cir.2006); United States v. Lloyd, 398 F.3d 978, 980 (7th Cir.2005). And because the conditions of § 2244(b)(3) have not been met, we also deny any implied request for permission now.
Therefore, we VACATE the district court’s dismissal and REMAND with instructions to DISMISS for lack of subject-matter jurisdiction.
. McIntosh initially was sentenced to 216 months' imprisonment, but the district court later granted the parties’ joint motion under 18 U.S.C. § 3582(c)(2) to reduce his sentence to 173 months based on retroactive amendments made to the Sentencing Guidelines relating to crack cocaine. See U.S.S.G. Supp. to App. C, 226-31(2009) (Amendment 706). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479108/ | ORDER
Police officers in Milwaukee, Wisconsin, stopped a car driven by Kevin Jones and found a loaded handgun and more than four pounds of marijuana. Jones pleaded guilty to possession of a firearm as a felon, 18 U.S.C. § 922(g)(1), and was sentenced to 164 months’ imprisonment as an armed career criminal, id. § 924(e). Two other counts were dropped, including a charge of carrying a firearm during a drug-trafficking crime, id. § 924(c)(1). Jones appealed, and, while his case was pending, the Supreme Court decided Chambers v. United States, — U.S. -, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009). That decision undermined the district court’s conclusion that Jones qualified as an armed career criminal, and so the parties filed a joint motion for remand, which we granted. On remand the government conceded that, in light of Chambers, Jones was not an armed career criminal. The district court vacated its original sentence and this time imposed a term of 72 months, 21 months above the upper end of the revised imprisonment range. Jones appeals again and argues that his prison sentence is unreasonable. We affirm the judgment.
Before Chambers was decided Jones had conceded that he should be sentenced as an armed career criminal based on his felony convictions for endangering safety by use of a dangerous weapon, second-degree reckless endangerment while armed, and escape. Section 924(e) ordinarily carries a statutory minimum sentence of 15 years, but at his first sentencing hearing Jones benefitted from a motion by the government to depart below that minimum based on his substantial assistance. See 18 U.S.C. § 3553(e). As it turned out, however, Jones was not an armed career criminal, and on remand the parties filed a joint motion asking the *601district court to vacate both his sentence and his guilty plea.
The parties renegotiated the plea agreement. Jones again pleaded guilty to a single count charging him with violating § 922(g)(1), but this time the government was unwilling to recommend a sentence below the revised imprisonment range of 41 to 51 months. The government instead agreed to recommend a term of 90 months, which, according to the prosecutor, was less than it would have asked for had Jones not cooperated. An above-range sentence was warranted, the government insisted, because Jones had a history of violent crimes. Two of his convictions had involved shooting at people, and a third, beating up a 13-year-old boy and then threatening the boy’s mother at gunpoint. The government pointed out the need to send a strong deterrent message given the rampant gun and drug crimes in the Milwaukee area.
In response Jones emphasized his good character, his demonstrated remorse, and his commitment to changing his ways as evidenced by his recently completed G.E.D. and his enrollment in classes while incarcerated. Defense counsel described the type of assistance Jones had provided the government, argued that this cooperation was further evidence of his attempt to reform, and urged the court to impose a sentence below the guidelines range as it had done before. According to Jones, the favorable decision in Chambers was not a valid reason to punish him by sentencing above the guidelines range. Regarding his criminal history, Jones pointed out that several of his convictions were old and were committed when he was too young to know better.
The district court, after evaluation the factors in 18 U.S.C. § 3553(a), agreed with the government that a sentence above 51 months was warranted. The judge gave particular emphasis to Jones’s history of violence and explained that, although this factor had been accounted for adequately when Jones was assumed to be an armed career criminal, the situation has changed. The court noted that Jones had been in nearly continuous contact with the penal system since age 15, and that his convictions, even though some of them were old, reflected the same disturbing pattern of conduct. In addition to his felony convictions, the court commented, Jones had committed 21 driving offenses and been arrested 12 other times on charges including burglary, disorderly conduct while armed, battery, aggravated battery, and witness intimidation. The court also commented that Jones’s criminal activities exemplified the type of dangerous crime that was on the rise in the community. An above-range sentence of 72 months was necessary to adequately account for Jones’s criminal history, to serve as a sufficient deterrent, and to protect the public. Addressing Jones’s mitigation arguments, the court said that his cooperation and good behavior in prison, while commendable, did not warrant a lower sentence.
The only issue raised by Jones in this appeal is the reasonableness of his prison sentence. He contends that the district court did not sufficiently explain its reasons for assessing an above-range sentence. The government counters that the court amply supported its decision with a thorough discussion of the § 3553(a) factors regarding Jones’s criminal history, the seriousness of the offense, and the need for deterrence.
We review sentences for their reasonableness, United States v. Booker, 543 U.S. 220, 260-63, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), applying an abuse-of-discretion standard, Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). After Booker, sentencing courts must first properly calculate the guidelines *602range and then determine the appropriate sentence, either inside or outside that range, by referencing the statutory factors listed in § 8553(a). See United States v. Hurt, 574 F.3d 439, 442 (7th Cir.2009); United States v. Wise, 556 F.3d 629, 632-33 (7th Cir.2009); United States v. McKinney, 543 F.3d 911, 913 (7th Cir.2008).
Here, the district court rooted its sentence in the § 3553(a) factors and fully justified its choice of a term 21 months above the guidelines range. Despite what Jones says, we conclude that the court fairly evaluated his personal characteristics, including the particular concern presented by his violent criminal history. The court expounded on Jones’s dangerous behavior and the need for deterrence. Based on the number, frequency, and violent nature of the crimes committed by Jones, it was reasonable for the court to conclude that his many uncounted convictions understated the seriousness of his criminal history. See United States v. Jackson, 576 F.3d 465, 470 (7th Cir.2009); United States v. McIntyre, 531 F.3d 481, 484 (7th Cir.2008) (per curiam); McKinney, 543 F.3d at 914; United States v. Walker, 447 F.3d 999, 1007-08 (7th Cir.2006). Moreover, if not for negotiating a plea agreement that allowed him to escape a mandatory, consecutive 5-year term under § 924(c)(1), Jones would have faced a guidelines range of 101 to 111 months, so even with the above-range term he still received substantial benefits. We conclude that the court offered sufficient justification for the term imposed, and that 72 months is reasonable.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479110/ | ORDER
We have consolidated for decision these three appeals because they all raise the same issue: whether fleeing an officer in violation of Wisconsin Statute § 346.04(3) constitutes a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924, or a “crime of violence” under the career offender guidelines, see U.S.S.G. § 4B1.1. The term “violent felony” under the ACCA and “crime of violence” under the career offender guidelines are nearly identical, and we apply the same interpretation to both provisions when determining whether a prior conviction triggers increased penalties. United States v. Templeton, 543 F.3d 378, 380 (7th Cir.2008); United States v. Spells, 537 F.3d 743, 749 n. 1 (7th Cir.2008); United States v. Rosas, 410 F.3d 332, 335-36 (7th Cir.2005). Here Demetrius Partee’s and Oscar Rash’s prior convictions for fleeing an officer (when added to convictions for serious drug offenses and a violent felony) triggered 15-year mandatory minimum sentences under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1). Ritchie Bufford’s prior conviction for fleeing an officer was treated as a “crime of violence” for purposes of the career offender guideline, see §§ 4B1.1-1.2, and he was eventually sentenced to 200 months’ imprisonment. We affirm all three sentences.
The Wisconsin statute at issue here makes it unlawful to use a vehicle to knowingly flee or elude a police officer by willfully and wantonly disregarding the officer’s signal so that one endangers the police, pedestrians, or other vehicles; or by speeding away in the vehicle or extinguishing its lights. WIS. STAT. § 346.04(3). The Armed Career Criminal Act defines a “violent felony,” and the sentencing guidelines define a “crime of violence,” to include “burglary, arson, or extortion, [or a crime that] involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. *604§ 924(e)(2)(B). See U.S.S.G. § 4B1.2(a)(2). In Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 1586-87, 170 L.Ed.2d 490 (2008), the Supreme Court construed such crimes to involve “purposeful, violent, and aggressive conduct.”
Defendants argue that the Wisconsin statute does not require “purposeful” conduct. They contend that “purposeful” requires intent, and claim that the statute requires only reckless, but not intentional conduct. This argument, however, is foreclosed by our recent opinion in United States v. Dismuke, 593 F.3d 582 (7th Cir.2010), which issued after briefing in these cases had finished. In Dismuke, which directly addressed § 346.04(3) under the ACCA, we observed that vehicular flight easily satisfied Begay’s “purposeful” requirement because the statute requires that one “knowingly flee or attempt to elude.” Dismuke, 593 F.3d at 592-93.
Defendants also argue that the conduct prohibited by the statute is not “violent” or “aggressive” because, they contend, the act of using a vehicle to flee an officer does not inherently involve violence or aggression. This argument is also foreclosed by Dismuke. There we examined “whether fleeing is ‘violent’ in the way required by Begay ” and concluded that it was. Dis-muke, 593 F.3cl at 593-94 (“We ... hold that Wisconsin’s crime of vehicular fleeing involves conduct that is similarly ‘violent and aggressive’ to burglary, arson, extortion, or crimes that involve the use of explosives.”).1
AFFIRMED.
. We note as an aside, should there be any doubt as to the violent nature of vehicular llight, that on March 1, 2010, a woman in Milwaukee was killed when she was hit by a van being pursued by police — becoming the fourth person in two months to be killed by a driver fleeing Milwaukee police. Jesse Garza, Milwaukee woman killed by van fleeing police, Milwaukee Journal Sentinel, Mar. 2, 2010, available at 2010 WLNR 4319589. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479112/ | ORDER
Mario Salas-Rodriguez was arrested in September 2006 and charged with driving while intoxicated — his fifth such arrest. This time, however, the police discovered what others had apparently, and inexplicably, missed on the first four occasions: Salas-Rodriguez was in the United States illegally, having been previously removed from the country in 1992 following an aggravated felony conviction for possession of cocaine with intent to deliver. He was convicted on the state charges and sentenced to two years in jail and two years of supervised release. He was released from state custody in January 2009.
Just a month before his release, he was federally indicted on charges of illegal reentry by a previously deported alien in violation of 8 U.S.C. § 1326(a). He eventually pleaded guilty. The Presentence Investigation Report (“PSR”) recommended a Guidelines range of 77 to 96 months, largely due to his felony conviction. Salas-Rodriguez did not object to the PSR, but, in a presentence filing and at the sentencing hearing, Salas-Rodriguez asked the court to disregard the Guidelines for illegal re-entry cases because they resulted in an inappropriately harsh sentence based on a 17-year-old conviction. He also noted in his presen-tence filing that the government’s “delay foreclosed the possibility of a concurrent or partially concurrent sentence” and at the sentencing hearing his attorney noted that the delay “completely foreclosed any argument that I would have for concurrent or partially concurrent time.” At no point did Salas-Rodriguez expressly ask the district court to reduce his sentence to account for the time that he had already served in state court. The district court rejected the arguments about the undue harshness of the Guidelines in re-entry cases. It did not discuss the possibility of reducing the federal sentence to account for the time served on his unrelated state sentence. Salas-Rodriguez was sentenced to 84 months’ imprisonment. He appeals, claiming that the court erred by failing to discuss its rationale for declining to give a reduced sentence due to the lost opportunity for concurrent sentences.
We review the reasonableness of a sentence under an abuse-of-discretion standard, and we presume a sentence reasonable when it falls within the Guidelines. United States v. Omole, 523 F.3d 691, 696 (7th Cir.2008). But a district court must follow proper sentencing procedure, which includes addressing all of a defendant’s principal arguments that are “not so weak as not to merit discussion.” United States v. Villegas-Miranda, 579 F.3d 798, 801 (7th Cir.2009); United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.2005). *606Although our circuit has not taken a definitive position on whether a sentencing court may reduce a defendant’s sentence based on a lost opportunity to serve it concurrently with that of an entirely unrelated state crime, we have held that — at least unless and until we decide to the contrary — the argument is not so weak as to justify a district court in ignoring it altogether. Id. at 803.
The problem for Salas-Rodriguez is that he did not even request the district court to reduce his sentence based on the time served in state court — much less offer this as one of his principal arguments. Rather than ask the district court to reduce his sentence to account for his lost opportunity, Salas-Rodriguez told the judge that he was not asking for a reduction based on the unrelated state sentence. Just one passing sentence in the background of his 10-page presentence filing references the lost opportunity for a concurrent sentences argument, and the same passing reference was reiterated at the sentencing hearing only as an afterthought to the principal argument on the appropriateness of a significant enhancement for a nearly 20-year-old drug conviction. He neither cited cases from this or any other circuit permitting a court to reduce a sentence on these grounds nor advanced any argument for why such a reduction would be appropriate or even permissible. If Salas-Rodriguez did not think his lost opportunity to argue for a concurrent sentence warranted more than the passing reference he made to it, we see no reason to consider it one of his principal arguments. Because this argument was not a “principal argument,” (or even a minor argument citing some authority) the district court did not abuse its discretion by not addressing it. The sentence is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479120/ | ORDER
McKeith Pearson, a federal prisoner acting pro se, sought damages from the government under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-2680, among other federal provisions, for the loss and destruction of personal property that Drug Enforcement Agency (“DEA”) agents seized during a search of his home. The district court dismissed all of his claims. Pearson argues on appeal that the *623court erred in dismissing his FTCA claim. We affirm.
In 2000 Pearson was indicted on drug and conspiracy charges in the Northern District of Florida; a warrant from that district was used to effectuate his arrest in Chicago. His indictment included an allegation of forfeiture to the government of his interest in property derived from or used to commit the alleged criminal acts. See 21 U.S.C. § 853(a)(l)(2). DEA agents searched his Chicago home and seized several items, including two computers (which Pearson valued at a combined $8,000), software ($800), and a digital scale ($400). The government used those items as evidence during its prosecution of Pearson in Florida. He pleaded guilty in 2001 and received a 30-year sentence.
In 2005 Pearson filed a motion in the Northern District of Illinois for the return of the property seized from his home five years earlier. The government asserted that the property had been disposed of or destroyed and suggested that he file an administrative tort claim with the DEA if he believed compensation was warranted. In light of the government’s assertion, the district court in 2006 dismissed Pearson’s motion as moot, and he filed an administrative tort claim with the DEA in May 2007. When relief was not forthcoming, he filed this suit in November 2008, alleging that the government had been negligent in handling his property and that it had taken his property without compensating him.
The district court dismissed Pearson’s suit for lack of subject-matter jurisdiction and for failure to state a claim.** See Fed.R.Civ.P. 12(b)(1), (6). The court concluded that it lacked jurisdiction over his FTCA claim because of 28 U.S.C. § 2680(c) — the “detention of goods” exeeption to the FTCA’s waiver of sovereign immunity. This exception forecloses FTCA claims arising from the unlawful detention of property by law enforcement officers, including the DEA agents who seized Pearson’s property. See Ali v. Federal Bureau of Prisons, 552 U.S. 214, 228, 128 S.Ct. 831, 169 L.Ed.2d 680 (2008). Pearson argued that the Civil Asset Forfeiture Reform Act of 2000, Pub.L. No. 106-185,114 Stat. 202 (“CAFRA”), amended the “detention of goods” exception to allow claims like his that were based on a loss of property seized for the purpose of forfeiture. See 28 U.S.C. § 2680(c)(1). But the court followed the reasoning of Foster v. United States, 522 F.3d 1071, 1075, 1077-79 (9th Cir.2008), and concluded that CAFRA only “rewaived” sovereign immunity when law enforcement officers seized the property solely for the purpose of forfeiture; seizure for any other purpose, or even for dual purposes including forfeiture, was not enough to escape the “detention of goods” exception. Because DEA agents seized Pearson’s property as evidence for his Florida prosecution, and not solely for forfeiture, CAFRA could not save his claim. The court noted, moreover, that because Pearson pleaded guilty to drug charges that were grounds for forfeiture under 21 U.S.C. § 853, his claim failed under 28 U.S.C. § 2680(c)(4), which foreclosed “re-waiver” to a claimant convicted of a crime for which his property was subject to forfeiture.
On appeal, Pearson challenges the dismissal of his FTCA claim. Section 2680(c)’s “detention of goods” exception to the FTCA’s waiver of sovereign immunity bars claims “arising in respect of ... the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement *624officer.” But CAFRA carved out an exception to the exception — a “re-waiver” of sovereign immunity — that allows claims based on injury or loss of property in the possession of law enforcement officers if four conditions are satisfied:
(1) the property was seized for the purpose of forfeiture under any provision of Federal law providing for the forfeiture of property other than as a sentence imposed upon conviction of a criminal offense;
(2) the interest of the claimant was not forfeited;
(3) the interest of the claimant was not remitted or mitigated (if the property was subject to forfeiture); and
(4) the claimant was not convicted of a crime for which the interest of the claimant in the property was subject to forfeiture under a Federal criminal forfeiture law.
§ 2680(c)(1) — (4); see Ali v. Federal Bureau of Prisons, 552 U.S. 214, 221, 128 S.Ct. 831, 169 L.Ed.2d 680 (2008).
Pearson renews his argument that the government seized his property for the purpose of forfeiture and that his claim therefore should have been permitted to go forward. To support his contention, he cites the allegation of forfeiture in his indictment. But, as the government argues, nothing in the indictment demonstrates that the DEA ever intended to seek forfeiture of the seized property. The indictment did not specify what was seized and simply stated that the property derived from proceeds of the crimes or used to commit the crimes could be forfeited. According to the docket from Pearson’s criminal case, no forfeiture proceedings were ever instituted against the property. Even if we assumed that the DEA seized Pearson’s property for the purpose of forfeiture, he cannot claim that his property was seized only for the purpose of forfeiture; his own complaint states that the property was seized as evidence. Foster, then, compels dismissal of his claim.
And even if we were to conclude that CAFRA “re-waiver” could occur when forfeiture was merely a purpose — rather than the only purpose — of a seizure, Pearson’s claim would still fail because of § 2680(c)(4). As the district court correctly noted, his guilty plea provided grounds for forfeiture under 21 U.S.C. § 853, which directs a court at sentencing to order forfeiture of a defendant’s property. His claim therefore falls outside of CAFRA’s exception. See Diaz v. United States, 517 F.3d 608, 613-14 (2d Cir.2008); Adeleke v. United States, 355 F.3d 144, 154 (2d Cir.2004).
Accordingly, we AFFIRM the judgment of the district court.
Pearson's failed claims under the Fifth Amendment and the Little Tucker Act, 28 U.S.C. § 1346(a)(2), are not at issue on this appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479122/ | ORDER
Kelvin Dorden pled guilty to distributing crack cocaine in violation of 21 U.S.C. § 841(a)(1), and on March 13, 2003, he was sentenced to 151 months imprisonment as a career offender under United States Sentencing Guideline § 4B1.1. In 2007, the Sentencing Commission reduced the base offense levels for crack cocaine offenses and made the changes retroactive. See-U.S.S.G. § 2Dl.l(c); U.S.S.G. Supp. to App. C 226-31 (2008) (“Amendment 706”). Dorden moved to reduce his sentence under 18 U.S.C. § 3582(c)(2), pursuant to which the sentencing court may reduce a sentence that was imposed based on a guideline sentencing range that has since been lowered, with retroactive effect. Finding that 18 U.S.C. § 3582(c)(2) did not permit a reduction of Dorden’s sentence, the district court denied his motion. We affirm.
18 U.S.C. § 3582(c)(2) states that:
in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
If Dorden had been sentenced under Sentencing Guideline § 2Dl.l(c), which applies different offense levels to different drug-quantities and was amended to reduce the base offense levels for crack cocaine offenses after Dorden was sentenced, section 3582(c)(2) might have authorized a sentence reduction. But Dorden’s sentence was not based on section § 2Dl.l(c). His sentence was based on section 4B1.1, which applies to career offenders and was not amended. As the Sentencing Commission has explained, “a reduction in the defendant’s term of imprisonment is not authorized under 18 U.S.C. § 3582(c)(2) and is not consistent with this policy statement if ... the amendment does not have the effect of lowering the defendant’s ap*630plicable guideline range because of the operation of another guideline or statutory provision (e.g. a statutory mandatory minimum term of imprisonment).” U.S.S.G. § 1B1.10, cmt. n. 1(A). Here the unamended career offender guideline operated to trump the amended crack cocaine guideline. Dorden therefore is not eligible to seek a reduction of his sentence under section 3582(c)(2).
Our decision in United States v. Forman, 553 F.3d 585 (7th Cir.2009), controls. Foreman was also sentenced as a career offender and sought resentencing under 18 U.S.C. § 3582(c)(2) when the drug quantity guidelines were amended. We explained then: “Amendment 706 provides no benefit to career offenders.” 553 F.3cl at 589, citing United States v. Liddell, 543 F.3d 877, 882 n. 3 (7th Cir.2008); United States v. Sharkey, 543 F.3d 1236, 1239 (10th Cir.2008); United States v. Moore, 541 F.3d 1323, 1327-28 (11th Cir.2008); United States v. Thomas, 524 F.3d 889, 890 (8th Cir.2008).
D orden’s arguments that his ultimate sentence was based on section 2Dl.l(c) and not on section 4B1.1 are not persuasive. He argues that before considering a defendant’s status as a career offender, section 1B1.1 directs a sentencing court to consider the drug quantity involved in the underlying offense. However, a career offender’s ultimate sentence is not based “in part” on the initial guideline range of section 2D1.1 because that range is completely trumped by the career offender guidelines of section 4B1.1. The offense level for the career offender guideline is governed by the unchanged statutory maximum for the offense of conviction, not by the amended drug quantity provisions of section 2D 1.1.
Also, Dorden offers United States v. Hedgebeth, 2008 WL 2719574 (E.D.Pa. July 10, 2008), in which the court had found that the applicable guideline range was 60 to 71 months but then imposed its initial sentence of 48 months, a sentence that was 12 months below the statutory minimum sentence and the bottom of the range. But Hedgebeth was not a career offender. He was a cooperating defendant who obtained the government’s motion pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1. On Hedgebeth’s later motion to reduce his sentence under section 3582(c)(2) based on Amendment 706, the court stated that because it had considered the original applicable guideline range in determining how much of a reduction was warranted for Hedgebeth’s assistance to the government when it imposed the original sentence, it was “at least to some extent, influenced by, and therefore ‘based [in part] on a sentencing range that has been subsequently lowered’ within the meaning of § 3582(c)(2).” Id. at *1. The court’s decision to reduce his sentence simply followed Advisory Note 3 to U.S.S.G. § 1B1.10, which advises that a sentence below an original guideline range may also be reduced where a retroactive amendment affects the original range. The considerations that operated to Hedgebeth’s advantage simply are not applicable here and do not help Dorden.
Dorden’s reliance on language in Witte v. United States, 515 U.S. 389, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995), is also misplaced. Witte argued that he was protected under the Double Jeopardy Clause from prosecution for a cocaine smuggling offense because the quantity of cocaine at issue had been taken into account when he was sentenced for a separate marijuana smuggling offense. The Supreme Court disagreed, finding that it was not “punishment” for the sentencing court to take into account uncharged criminal conduct in setting — and enhancing — Witte’s sentence. The Double Jeopardy Clause did not prohibit Witte from later being prosecuted for the enhancing conduct. 515 U.S. at 399-*631400, 115 S.Ct. 2199. Dorden relies upon language in Witte that refers generally to the drug guideline under which Witte was sentenced as the “applicable Guideline:”
By including the cocaine from the earlier transaction — and not just the marijuana involved in the offense of conviction — in the drug quantity calculation, the District Court ended up with a higher offense level (40), and a higher sentence range (292 to 365 months), than it would have otherwise under the applicable Guidelin-e, which specifies different base offense levels depending on the quantity of the drugs involved. U.S.S.G. § 2D1.1.
Witte, 515 U.S. at 399, 115 S.Ct. 2199 (emphasis added). Based on this language, Dorden argues that the underlying offense (marijuana smuggling for Witte, distribution of crack cocaine for Dorden) provides the applicable guideline, and that other considerations (cocaine smuggling for Witte, career offender status for Dor-den) are enhancements to that applicable guideline.
Witte does not support that interpretation. In Witte, only one sentencing guideline — section 2D1.1 — was in play in determining the appropriate base offense level, which was determined by considering both the charged and uncharged quantities of drugs involved in Witte’s drug smuggling enterprise. Witte’s charged conduct (marijuana smuggling) and the uncharged conduct (cocaine smuggling) fell under the same applicable sentencing guideline. One drug did not trump the other for sentencing purposes. In Dorden’s case, although he was charged with distribution of crack cocaine, he was sentenced as a career offender under the career offender guideline because, for sentencing purposes, his status as a career offender completely eclipsed the guideline calculations for crack cocaine distribution.
Because Dorden is not eligible for a reduction in sentence under section 3582(c)(2), we need not address his argument that he would also be entitled to a full sentencing rehearing. The decision of the trial court is affirmed. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479125/ | PER CURIAM.
Richard Mellor appeals pro se the district court’s1 judgment, entered after a jury found him guilty of knowingly presenting to the Internal Revenue Service (IRS) a false claim by filing a return for the 2002 tax year claiming a refund of $240,008.79, in violation of 18 U.S.C. § 287 (Count 1); willfully attempting to evade income tax due by failing to file income tax returns and attempting to conceal his income for 2002, 2003, 2004, and 2005, in violation of 26 U.S.C. § 7201 (Counts 2-5); and attempting to obstruct the administration of internal revenue laws, in violation of 26 U.S.C. § 7212(a) (Count 6). For the reasons that follow, we affirm.
We reject Mellor’s argument that the willful-blindness jury instruction constructively amended Count 1 as it was' charged in the indictment. See United States v. Gill, 513 F.3d 836, 849 (8th Cir.2008) (jury instructions constructively amend indictment if they so modify essential elements of charged offense that they allow jury to convict defendant of offense other than one charged in indictment). The jury instructions listed the elements of the false-claim offense, including that Mel-lor must have known the claim was false, fictitious, or fraudulent; and the willful-blindness instruction merely provided a means of inferring that knowledge. See United States v. Aleman, 548 F.3d 1158, 1166 (8th Cir.2008) (willful-blindness instruction is proper if evidence supports inference that defendant was aware of high probability of existence of fact in question and purposely contrived to avoid learning facts in order to have defense), cert. denied, — U.S. -, 129 S.Ct. 2756, 174 L.Ed.2d 263 (2009).
We further hold that the district court did not err in denying Mellor’s motion to dismiss the indictment based on a change in the date he was alleged to have *658committed the Count 1 offense, because we conclude that the modified date did not constitute a constructive amendment of the indictment. The original and modified dates — for each of which a range was given — were within two weeks of each other, and both clearly referred to the same offense. See United States v. Harris, 344 F.3d 803, 804-05 (8th Cir.2003) (per cu-riam) (reversible constructive amendment occurs if evidence used modified essential elements of offense; no error in district court’s finding of guilt on or about date other than date charged in indictment, as date was “reasonably near” date alleged).
Finally, this court has previously rejected the contention that the IRS must issue a tax assessment in order to meet its burden under section 7201 of proving the existence of a tax deficiency. See United States v. Gustafson, 528 F.3d 587, 593 (8th Cir.2008).
Accordingly, the judgment is affirmed.
. The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479127/ | MEMORANDUM **
Juan Sanabria-Perez appeals from his guilty-plea conviction and 65-month sentence for re-entry after deportation, in violation of 8 U.S.C. § 1326. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Sanab-ria-Perez’s counsel has filed a brief stating *672there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479132/ | MEMORANDUM *
Appellants Sears, Roebuck and Co. and Young & Rubicam, Inc. (hereinafter “Sears”) appeal the judgment entered for Appellee Lucky Break Wishbone Corp. (“Lucky Break”) following a jury trial. Lucky Break cross-appeals from the district court’s order preventing it from presenting evidence on a part of its indirect profits claim. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.
I
“To establish copyright infringement, the holder of the copyright must prove both valid ownership of the copyright and infringement of that copyright by the alleged infringer.” Entm’t Research v. Genesis Creative Group, 122 F.3d 1211, 1217 (9th Cir.1997).
Sears contends that the district court erred in ruling on summary judgment that Lucky Break’s wishbone was protectable under the Copyright Act. “To qualify for copyright protection, a work must be original to the author. Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.” Feist Pubs., Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 345, 111 S.Ct. 1282, 113 *755L.Ed.2d 358 (1991). Purely functional, utilitarian, or mechanical aspects of a sculptural work may not receive copyright protection. 17 U.S.C. § 101; Lamps Plus, Inc. v. Seattle Lighting Fixture Co., 345 F.3d 1140, 1146 (9th Cir.2003). Lucky Break met this standard on summary judgment. In his deposition testimony and declaration, Dale Hillesland explained that he manipulated the graphite electrodes by hand to make the wishbone “all nice and round and smooth,” or as he later explained it, “more attractive and sleek looking.” He sanded down “sharp areas,” rounded the head of the wishbone, and “thinned ... up” the arms. Dr. Steadman testified in his deposition that the Lucky Break wishbone had a number of elements that distinguished it from a natural wishbone and did not serve any functional purpose. On summary judgment, it was undisputed that these multiple variations were the intentional product of Hillesland’s creativity and aesthetic design. They went beyond mere copying and did not serve a functional purpose; they were therefore sufficient to constitute original expression. Accordingly, the district court correctly concluded on summary judgment that Lucky Break had a valid copyright in the Lucky Break wishbone.
During trial, Sears sought reconsideration of this order. The district court did not abuse its discretion in denying Sears’s motion for reconsideration. The new evidence presented on reconsideration did not undermine the district court’s earlier conclusion that the Lucky Break wishbone was original. Sears did not conclusively establish the origin of the “Cimtech file” or the date it was first provided to Sears. Nor did the file itself create a genuine issue of material fact as to originality, given the existence of significant differences between the natural and Lucky Break wishbone that Sears’s theory of the Lucky Break wishbone’s creation cannot explain. Accordingly, we affirm the district court’s grant of summary judgment to Lucky Break on the question of originality.
II
Sears challenges on several grounds the conclusion that it infringed Lucky Break’s copyright. First, Sears contends that the district court erred in denying Sears’s motion for summary judgment on the issue of infringement. Because the case proceeded to trial and verdict on that issue, we may not review this determination on appeal. See Affordable Housing Dev. Corp. v. City of Fresno, 433 F.3d 1182, 1193 (9th Cir.2006); De Saracho v. Custom Food, Machinery, Inc., 206 F.3d 874, 877-78 (9th Cir.2000).
Second, Sears contends that the district court abused its discretion in refusing to preclude plaintiffs expert, Dr. Steadman, from testifying about virtual identity. To prevail, Sears must show that the district court abused its discretion in admitting the testimony and that the error was prejudicial. Dream Games of Ariz., Inc. v. PC Onsite, 561 F.3d 983, 987-88 (9th Cir.2009). Sears has not made such a showing. “[A] witness may properly be called upon to aid the jury in understanding the facts in evidence even though reference to those facts is couched in legal terms,” Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1017 (9th Cir.2004), and “a district court does not abuse its discretion in allowing experts to use legal terminology,” Nationwide Transp. Fin. v. Cass Info. Sys., Inc., 523 F.3d 1051, 1059 (9th Cir.2008). Dr. Stead-man’s testimony about the differences between the Lucky Break production wishbone and natural turkey wishbones was relevant and helpful to the jury. Stead-man’s testimony as to whether the two plastic wishbones were “virtually identical” aided the jury in understanding the significance of the features that Steadman identi*756fied and the extent to which they made the wishbones the same. Moreover, Sears cannot show that allowing the question was prejudicial in light of the rest of the admissible testimony. Dr. Steadman had already testified about the distinguishing features of the Lucky Break wishbone, that the Sears wishbone possessed these features, and that the Sears wishbone was a copy of the Lucky Break wishbone. The testimony to which Sears objected added little of significance to what Dr. Stead-man’s testimony had already established. Accordingly, the district court did not abuse its discretion in permitting the testimony.
Third, Sears renews its objection to jury instructions concerning infringement and authorship. We review a district court’s formulation of civil jury instructions for abuse of discretion, and review de novo whether a jury instruction misstates the law. Dream Games, 561 F.3d at 988. Sears’s objections are without merit. The district court made clear in Instruction 15 that proving infringement required copying of original elements, and the court therefore acted within its discretion not to include a redundant statement that copying of “unoriginal elements” is not infringement. Instruction 15A made clear Lucky Break’s need to demonstrate “independent! ]” creation plus “at least some minimal creativity,” employing language virtually synonymous with that requested by Sears. Instruction 15E defined virtual identity at length and stated in mandatory language that the jury had to find virtual identity; adding the term “thin copyright” would have been redundant. As to authorship, Instruction 15B adequately distinguished between an “author” and other “contributor[s]” to a work and made clear that the “author” was Dale Hillesland; together with Instruction 15A, Instruction 15B made clear that the original, protectable elements of the Lucky Break wishbone were those created independently by the work’s author. Viewing these instructions together, we hold that the district court properly instructed the jury, neither misstating the law nor abusing its discretion.
Fourth and finally, Sears contends that the jury’s verdict was not supported by substantial evidence. We conclude that the record contained sufficient evidence to support the jury’s verdict. Lucky Break met its burden on the issues of ownership and originality as a result of the summary judgment ruling. The parties’ stipulations established that Cimtech scanned a real turkey wishbone and provided the scanned data to Lucky Break; that a computer model was created from the scanned data; that Hillesland used the model to make graphite electrodes; that Hillesland finished the graphite electrodes by hand; and that Hillesland used the finished graphite electrodes to create a mold cavity for the Lucky Break wishbones. Ahroni testified that he instructed Cimtech only to create a 3D copy of the natural wishbone and not to make any alterations to it, and that he met with Hillesland, showed him the natural wishbone, gave him a copy of the Cimtech data, and asked him to create a mold. Steadman testified that the prototype wishbone contained features that distinguished it from natural turkey wishbones. There was also physical evidence of the graphite electrodes, molding cavity, computer models, the natural wishbone used as a model, Lucky Break wishbones, and third party plastic wishbones that did not contain the same distinguishing features.
This was sufficient circumstantial evidence from which a jury could have determined that the identification of certain elements in the Lucky Break wishbone that did not exist in natural wishbones meant that the Lucky Break wishbone could not have been created simply by scanning the *757natural wishbone; that Hillesland had to have introduced the identified, unique features through the model and mold-making process; that these unique features were therefore original, protectable elements of the wishbone; and that the Sears wishbones infringed these original features. Accordingly, we conclude that based upon the district court’s summary judgment ruling on originality, and the stipulations, testimony, and physical evidence presented at trial, the jury’s verdict was supported by substantial evidence.
Ill
Sears argues that the jury’s award of actual damages for infringement of the wishbone and product warming was not supported by substantial evidence. “Actual damages are usually determined by the loss in fair market value of the copyright, measured by the profits lost due to the infringement or by the value of the use of the copyrighted work to the infringer.” Polar Bear Prods., Inc. v. Timex Corp., 384 F.3d 700, 708 (9th Cir.2004). Sears contends that actual damages should be measured by Lucky Break’s lost profits, and that the jury failed to deduct the cost of manufacturing the wishbones in computing profits. The jury is not restricted, however, to awarding lost profits. See id. Even if it were so restricted, Lucky Break quoted a price of 32.9 cents to Sears per individually packaged wishbone with a warning similar to the kind Sears eventually used, amounting to a total of $329,263.20 for 1,000,800 wishbones. This amount is substantially higher than the jury’s awards of $190,152 in actual damages for infringement of the wishbone and $30,024 in actual damages for infringement of the warning. We cannot conclude, therefore, that the jury failed to take the cost of manufacturing into account in determining lost profits or what the fair market value of a lost license fee would have been. The jury was not asked to explain its reasoning and was properly instructed. Because the total damages award was reasonable based upon the evidence presented at trial, we uphold the jury’s award of actual damages as supported by substantial evidence.
As for indirect profits, Sears objects that the jury failed to properly deduct expenses and apportion Sears’s profits in awarding damages. To recover indirect profits, a copyright holder must demonstrate a “causal relationship between the infringement and the profits generated indirectly from such an infringement.” Mackie v. Rieser, 296 F.3d 909, 915-916 (9th Cir.2002). Lucky Break introduced evidence sufficient to establish causation, specifically that the wishbone coupon was redeemed at a rate 42.7% higher than the average rate of bounce-back coupons distributed in December.
The burden is on the copyright holder “to present proof only of the infringer’s gross revenue.” 17 U.S.C. § 504(b). In presenting proof of gross revenue, Lucky Break needed to demonstrate “the revenue stream ... [that] bear[s] a legally significant relationship to the infringement,” but was not required “to separate the gross profits resulting from the infringement from the profits resulting from other sources.” Polar Bear, 384 F.3d at 711-12. Lucky Break met this burden by introducing evidence that Sears took in $5,150,045 in revenue during sales in which coupons were actually redeemed.
The burden then shifts to the infringer to demonstrate its “deductible expenses and the elements of profit attributable to factors other than the copyrighted work.” 17 U.S.C. § 504(b). Sears introduced evidence of expenses and also contended that the increased rate of redemption and sales was fully or partially attributable to factors other than the infringing wishbone. The jury awarded $1,479,404, demonstrat*758ing that it credited some, but not all, of Sears’s evidence and arguments. Because “the jury did not delineate the individual components of its total indirect profits award, it is impossible to tell whether the ... award ... was duly apportioned.... In the absence of evidence to the contrary, we presume that the jury fulfilled its duty to apportion profits.” Polar Bear, 384 F.3d at 713. The jury awarded only a portion of Sears’s gross revenue for the relevant period, and was not asked to specify what expenses it chose to deduct and how it chose to apportion profits. The gross revenue figure presented by Lucky Break was limited to transactions in which the coupon was redeemed, and an award of just under 30% of the gross revenue for those transactions was reasonable based upon the evidence presented at trial. Moreover, the burden was on Seal’s to demonstrate otherwise, and “[a]ny doubt as to the computation of costs or profits is to be resolved in favor of the plaintiff.” Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 772 F.2d 505, 514 (9th Cir.1985). Accordingly, we conclude that the indirect profits award was supported by substantial evidence.
IV
Young & Rubicam, Inc. contends that the district court abused its discretion by not awarding it the full amount of its claim for attorney’s fees and costs. Recovery of attorneys’ fees for a prevailing party is not automatic under the Copyright Act; the district court has “wide latitude to exercise ‘equitable discretion’ ” in determining whether an award would further the underlying purposes of the Act. Entm’t Research, 122 F.3d at 1229; see 17 U.S.C. § 505; Fogerty v. Fantasy, Inc., 510 U.S. 517, 534, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994). Here, the district court thoroughly reviewed the billing statements and concluded that a limited award of attorney’s fees and costs was warranted in light of the “very limited favorable result” that Young & Rubicam achieved. It apportioned the hours between work for which fees were and were not recoverable as best as possible in light of the limited information available, and then awarded those hours at the requested rates. We hold that the district court did not abuse its discretion in doing so.
V
On cross-appeal, Lucky Break contends that the district court wrongly excluded Dr. Belch’s testimony and improperly dismissed its indirect profits claim for Sears’s profits made on November 19, 2005. We disagree. Prior to excluding Dr. Belch’s testimony, the district court held extensive oral argument, during which Lucky Break had difficulty providing a satisfactory response to the court’s probing questions about how Dr. Belch determined what portion of Sears’s revenue on November 19, 2005 was related to the infringement. The district court acted within its discretion in excluding Dr. Belch’s testimony as excessively speculative.
Lucky Break also complains that the district court engaged in procedural irregularities when it prevented Lucky Break from presenting its claim for profits made on November 19. The district court, however, provided Lucky Break the opportunity to be heard on whether Dr. Belch’s testimony should be excluded, and after excluding his testimony gave Lucky Break the opportunity to proffer additional evidence. The district court considered the proffer and issued a ruling determining that there was insufficient non-speculative evidence for Lucky Break to go to the jury on this claim. This ruling was not an abuse of discretion. Because Lucky Break was given an adequate opportunity to be heard, any procedural irregularities were harmless.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479133/ | RAWLINSON, Circuit Judge,
concurring:
I concur in the result. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479103/ | ORDER
Javail Winston pleaded guilty without a plea agreement to one count of bank rob*595bery, admitting that a bank teller handed over $1,540 after he gave her a note threatening to kill her if she refused. See 18 U.S.C. § 2113(a). The district court sentenced him to 175 months’ imprisonment, well above his applicable guidelines range of 46 to 57 months. Winston filed a notice of appeal, but his appointed lawyers have concluded that the case is frivolous and seek to withdraw under Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We invited Winston to respond to counsel’s motion, though he did not. See Cir. R. 51(b). Because counsel’s brief is facially adequate, we limit our review to the potential issues he has identified. United States v. Cano-Rodriguez, 552 F.3d 637, 638 (7th Cir.2009) (per curiam); United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
This case marks Winston’s sixth bank robbery and tenth felony conviction. Between December 1980 and June 1981, Winston committed a series of four armed robberies yielding four convictions, two each in federal and state court. Winston added a fifth conviction, for escape, after he fled the state courthouse following his sentencing for the bank robberies. Even so, he was released from custody in October 1990, and about eight months later he embarked on another crime spree, robbing-two women and his fifth bank. For the bank robbery he was sentenced in federal court as a career offender to 168 months’ imprisonment, and for the other robberies he was sentenced in an Illinois court to a total of 11 years to run concurrently with the federal sentence. After his release in 2004, Winston was suspected of committing three additional bank robberies before he was arrested for his current offense in October 2007.
Despite this extensive criminal history, the probation officer calculated a total offense level of 21 and a category III criminal history, yielding an imprisonment range of just 46 to 57 months. That is because only four criminal history points total were assessed for the fifth bank robbery and a 2006 conviction for driving while intoxicated. Many of his other convictions were too old to count, and he also caught a very lucky break: neither of his most-recent state convictions for robbery were counted because those sentences were never reported to, or recorded in the records of, the Illinois Department of Corrections.
The government moved for an above-guidelines sentence, arguing that Winston’s criminal history category did not reflect the seriousness of his criminal past and the great likelihood of his recidivism. Although this time the career-offender guideline, U.S.S.G. § 4B1.1, did not apply, the government argued that Winston should be sentenced again as though he was a career offender within the range of 151 to 188 months. The government also urged the district court to assess a sentence longer than the 168 months Winston received for his fifth bank robbery, which had not been a sufficient deterrent.
Winston conceded that his category III criminal history under-represented his criminal history but argued that a sentence within the career-offender range would be too harsh. Instead, he proposed a sentence of 100 to 125 months in prison. Winston apologized for his actions and explained that his robbery was “an act of desperation” to prevent his family from being evicted from their home. The district court, however, noted the obvious pattern of behavior and how quickly Winston had resumed his criminal behavior after being released from prison. Incarceration, the court reasoned, was the only way to protect the public from Winston, and the court was convinced that the only reason Winston had not committed more robberies was because he was in prison most of *596his adult life. The court agreed with the government that the new term should exceed 168 months and imposed a sentence of 175 months’ imprisonment.
In their Anders submission counsel note that Winston wants his guilty plea set aside, so they examine the plea colloquy for a possible appellate claim. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002). But counsel have noticed only one shortcoming in the colloquy: the district court did not advise Winston of his right at trial to present evidence on his own behalf. See Fed.R.CrimP. 11(b)(1)(E). Because Winston did not move to withdraw his plea in the district court, our review would be for plain error. See United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Villarreal-Tamayo, 467 F.3d 630, 632 (7th Cir.2006).
It would be frivolous to argue that the district court committed plain error. The court essentially informed Winston of his right to present evidence when it explained that he could testify in his own defense and compel others to testify for him. And Winston cannot claim to be ignorant of that right because the information was covered in Winston’s written plea declaration, which he acknowledged having read and understood. See United States v. Blalock, 321 F.3d 686, 688-89 (7th Cir.2003); United States v. Driver, 242 F.3d 767, 771 (7th Cir.2001). Therefore, we would not find that this minor omission affected Winston’s decision to plead guilty. See United States v. Griffin, 521 F.3d 727, 730 (7th Cir.2008); United States v. Cross, 57 F.3d 588, 591 (7th Cir.1995).
Counsel also have considered arguing that Winston’s prison sentence, which is 118 months above his guidelines range, is unreasonably high. We would uphold as reasonable a sentence that exceeds the range recommended by the guidelines as long as the district court applies the factors set forth in 18 U.S.C. § 3553(a) and articulates an adequate statement of its reasons for imposing the sentence. See United States v. Hurt, 574 F.3d 439, 442 (7th Cir.2009); United States v. Wise, 556 F.3d 629, 632-33 (7th Cir.2009); United States v. Tockes, 530 F.3d 628, 632 (7th Cir.2008).
Counsel correctly conclude that this argument would be frivolous because the district court thoroughly analyzed the § 3553(a) factors and amply justified sentencing Winston to 175 months. The court explained that Winston’s professed financial hardship did not “lessen the violent impact that the crime undoubtedly had on the persons present during the bank robbery” and those in the surrounding community. The court recounted Winston’s pattern of robberies (several of which occurred while he was still on probation or parole) and the violent nature of his criminal history, and concluded that a guidelines range of 46 to 57 months would not adequately deter Winston from criminal behavior or protect the public when his prior 168-month sentence had failed to do so. And the court surmised that Winston’s criminal history score, which already under-represented his criminal record, would likely be even higher had Winston not been in prison from. 1992 to 2004 and thus prevented from committing other crimes during the 15-year period the guidelines look to for his criminal history. We have affirmed above-range sentences in similar cases where the defendant’s criminal history did not adequately account for his extensive criminal conduct. See United States v. Jackson, 576 F.3d 465, 470 (7th Cir.2009); United States v. Jackson, 547 F.3d 786, 793-94 (7th Cir.2008); United States v. McIntyre, 531 F.3d 481, 484 (7th Cir.2008) (per curiam); United *597States v. Valle, 458 F.3d 652 (7th Cir.2006). Moreover, although the district court did not address the clerical error that resulted in the two 1992 state robberies being excluded from Winston’s criminal history, this fluke would also be a reason for the district court to depart so far above the guidelines range. See McIntyre, 581 F.3d at 483-84. If these two robberies had been scored, Winston would have qualified as a career offender under § 4B1.1.
Finally, counsel consider whether Winston could challenge the district court’s failure to specify the number of drug tests he must undergo while on supervised release. The district court should have set the number of required drug tests. 18 U.S.C. § 3583(d); United States v. Bonanno, 146 F.3d 502, 511 (7th Cir.1998). But Winston said nothing about the omission at sentencing, and the error is not one that we would correct on plain-error review. See United States v. Harvey, 484 F.3d 453, 458-59 (7th Cir.2007); United States v. Tejeda, 476 F.3d 471, 475 (7th Cir.2007). Thus, we agree with counsel that it would be frivolous to raise this point on appeal.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479105/ | ORDER
Federal inmate Charles McIntosh pleaded guilty to one count of conspiring to distribute crack cocaine and was sentenced to 173 months’ imprisonment.1 In July 2009, after filing an unsuccessful motion for collateral relief under 28 U.S.C. § 2255, McIntosh filed a motion captioned as a “Bill of Review Atlas Motion.” The district court denied (rather than dismiss for lack of subject-matter jurisdiction) McIntosh’s motion, noting that he had not raised any issues that could be reviewed at that point in the proceedings and that the time for filing post-conviction motions for relief had already passed. McIntosh appeals, claiming that, under the holding of Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (1944), the district court always has authority to set aside or correct a judgment procured through fraud, which, he contends, was the nature of his motion. Specifically McIntosh argues, as he did in his earlier § 2255 motion, that the police, with the help of the prosecutor, submitted fraudulent affidavits and investigation reports to the state magistrate judge in order to obtain the warrants for his arrest and to search his house. We conclude that the district court did not have jurisdiction to consider McIntosh’s “Bill of Review Atlas Motion” because it should have been construed as an unauthorized successive § 2255 motion.
We first recount the procedural background. After his guilty plea, McIntosh never appealed his conviction or sentence. Instead, he filed his § 2255 motion in December 2007 — 14 months after the date of judgment — despite prior warnings from the district court that he must meet the one-year filing deadline. See 28 U.S.C. § 2255(f). In his motion McIntosh set forth four grounds for relief: a claim that, in violation of the Fourth Amendment, police submitted false affidavits to obtain the warrants for his arrest warrant and to search his house; a claim of prosecutorial misconduct alleging that the prosecutor conspired with police to knowingly submit false or fraudulent documents to the court; an insufficient-evidence claim; and a claim of ineffective assistance of counsel. The district court denied McIntosh’s motion as untimely, and McIntosh did not appeal that decision either.
The denial of his § 2255 motion did not, however, stop McIntosh from trying to find other ways to attack his conviction collaterally. He later filed a motion to dismiss his conspiracy conviction, alleging that all seven of the counts initially listed in his indictment (the conspiracy charge *599plus six drug-distribution counts) were duplicitous. The district court denied the motion, explaining that it was not only-untimely, but also constituted a second or successive § 2255 motion for which McIntosh had not obtained permission from this court to file. See 28 U.S.C. § 2244(b)(3).
McIntosh’s “Bill of Review Atlas Motion” is his latest attempt to challenge his conspiracy conviction on the basis of the “fraudulent” warrant application. He invokes the Hazel-Atlas case, in which the Supreme Court held that federal courts possess the inherent power to vacate a judgment obtained by fraud on the court. The government responds that, while the district court possesses such power in general, § 2244(b)(3) nonetheless constrains the court to construe the “Bill of Review” as another successive § 2255 motion because it raises the same claims of fraud as he did in his prior, untimely § 2255 motion.
“[I]t is the substance of the petitioner’s motion that controls how his request for relief shall be treated.” United States v. Carraway, 478 F.3d 845, 848 (7th Cir.2007). The substance of McIntosh’s post-judgment motion is a request for relief from the underlying criminal judgment. Such a request, regardless of its caption, requires advance authorization from the court of appeals where, as here, its substance attacks the constitutional validity of the criminal judgment on the merits. Gonzalez v. Crosby, 545 U.S. 524, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005); see also § 2255(h); § 2244(b)(3); Nunez v. United States, 96 F.3d 990, 991 (7th Cir.1996). Because he did not obtain the necessary authorization, the district court lacked jurisdiction to consider his motion. See Jackson v. United States, 463 F.3d 635, 639-40 (7th Cir.2006); United States v. Lloyd, 398 F.3d 978, 980 (7th Cir.2005). And because the conditions of § 2244(b)(3) have not been met, we also deny any implied request for permission now.
Therefore, we VACATE the district court’s dismissal and REMAND with instructions to DISMISS for lack of subject-matter jurisdiction.
. McIntosh initially was sentenced to 216 months' imprisonment, but the district court later granted the parties’ joint motion under 18 U.S.C. § 3582(c)(2) to reduce his sentence to 173 months based on retroactive amendments made to the Sentencing Guidelines relating to crack cocaine. See U.S.S.G. Supp. to App. C, 226-31(2009) (Amendment 706). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479107/ | ORDER
Police officers in Milwaukee, Wisconsin, stopped a car driven by Kevin Jones and found a loaded handgun and more than four pounds of marijuana. Jones pleaded guilty to possession of a firearm as a felon, 18 U.S.C. § 922(g)(1), and was sentenced to 164 months’ imprisonment as an armed career criminal, id. § 924(e). Two other counts were dropped, including a charge of carrying a firearm during a drug-trafficking crime, id. § 924(c)(1). Jones appealed, and, while his case was pending, the Supreme Court decided Chambers v. United States, — U.S. -, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009). That decision undermined the district court’s conclusion that Jones qualified as an armed career criminal, and so the parties filed a joint motion for remand, which we granted. On remand the government conceded that, in light of Chambers, Jones was not an armed career criminal. The district court vacated its original sentence and this time imposed a term of 72 months, 21 months above the upper end of the revised imprisonment range. Jones appeals again and argues that his prison sentence is unreasonable. We affirm the judgment.
Before Chambers was decided Jones had conceded that he should be sentenced as an armed career criminal based on his felony convictions for endangering safety by use of a dangerous weapon, second-degree reckless endangerment while armed, and escape. Section 924(e) ordinarily carries a statutory minimum sentence of 15 years, but at his first sentencing hearing Jones benefitted from a motion by the government to depart below that minimum based on his substantial assistance. See 18 U.S.C. § 3553(e). As it turned out, however, Jones was not an armed career criminal, and on remand the parties filed a joint motion asking the *601district court to vacate both his sentence and his guilty plea.
The parties renegotiated the plea agreement. Jones again pleaded guilty to a single count charging him with violating § 922(g)(1), but this time the government was unwilling to recommend a sentence below the revised imprisonment range of 41 to 51 months. The government instead agreed to recommend a term of 90 months, which, according to the prosecutor, was less than it would have asked for had Jones not cooperated. An above-range sentence was warranted, the government insisted, because Jones had a history of violent crimes. Two of his convictions had involved shooting at people, and a third, beating up a 13-year-old boy and then threatening the boy’s mother at gunpoint. The government pointed out the need to send a strong deterrent message given the rampant gun and drug crimes in the Milwaukee area.
In response Jones emphasized his good character, his demonstrated remorse, and his commitment to changing his ways as evidenced by his recently completed G.E.D. and his enrollment in classes while incarcerated. Defense counsel described the type of assistance Jones had provided the government, argued that this cooperation was further evidence of his attempt to reform, and urged the court to impose a sentence below the guidelines range as it had done before. According to Jones, the favorable decision in Chambers was not a valid reason to punish him by sentencing above the guidelines range. Regarding his criminal history, Jones pointed out that several of his convictions were old and were committed when he was too young to know better.
The district court, after evaluation the factors in 18 U.S.C. § 3553(a), agreed with the government that a sentence above 51 months was warranted. The judge gave particular emphasis to Jones’s history of violence and explained that, although this factor had been accounted for adequately when Jones was assumed to be an armed career criminal, the situation has changed. The court noted that Jones had been in nearly continuous contact with the penal system since age 15, and that his convictions, even though some of them were old, reflected the same disturbing pattern of conduct. In addition to his felony convictions, the court commented, Jones had committed 21 driving offenses and been arrested 12 other times on charges including burglary, disorderly conduct while armed, battery, aggravated battery, and witness intimidation. The court also commented that Jones’s criminal activities exemplified the type of dangerous crime that was on the rise in the community. An above-range sentence of 72 months was necessary to adequately account for Jones’s criminal history, to serve as a sufficient deterrent, and to protect the public. Addressing Jones’s mitigation arguments, the court said that his cooperation and good behavior in prison, while commendable, did not warrant a lower sentence.
The only issue raised by Jones in this appeal is the reasonableness of his prison sentence. He contends that the district court did not sufficiently explain its reasons for assessing an above-range sentence. The government counters that the court amply supported its decision with a thorough discussion of the § 3553(a) factors regarding Jones’s criminal history, the seriousness of the offense, and the need for deterrence.
We review sentences for their reasonableness, United States v. Booker, 543 U.S. 220, 260-63, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), applying an abuse-of-discretion standard, Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). After Booker, sentencing courts must first properly calculate the guidelines *602range and then determine the appropriate sentence, either inside or outside that range, by referencing the statutory factors listed in § 8553(a). See United States v. Hurt, 574 F.3d 439, 442 (7th Cir.2009); United States v. Wise, 556 F.3d 629, 632-33 (7th Cir.2009); United States v. McKinney, 543 F.3d 911, 913 (7th Cir.2008).
Here, the district court rooted its sentence in the § 3553(a) factors and fully justified its choice of a term 21 months above the guidelines range. Despite what Jones says, we conclude that the court fairly evaluated his personal characteristics, including the particular concern presented by his violent criminal history. The court expounded on Jones’s dangerous behavior and the need for deterrence. Based on the number, frequency, and violent nature of the crimes committed by Jones, it was reasonable for the court to conclude that his many uncounted convictions understated the seriousness of his criminal history. See United States v. Jackson, 576 F.3d 465, 470 (7th Cir.2009); United States v. McIntyre, 531 F.3d 481, 484 (7th Cir.2008) (per curiam); McKinney, 543 F.3d at 914; United States v. Walker, 447 F.3d 999, 1007-08 (7th Cir.2006). Moreover, if not for negotiating a plea agreement that allowed him to escape a mandatory, consecutive 5-year term under § 924(c)(1), Jones would have faced a guidelines range of 101 to 111 months, so even with the above-range term he still received substantial benefits. We conclude that the court offered sufficient justification for the term imposed, and that 72 months is reasonable.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479109/ | ORDER
We have consolidated for decision these three appeals because they all raise the same issue: whether fleeing an officer in violation of Wisconsin Statute § 346.04(3) constitutes a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924, or a “crime of violence” under the career offender guidelines, see U.S.S.G. § 4B1.1. The term “violent felony” under the ACCA and “crime of violence” under the career offender guidelines are nearly identical, and we apply the same interpretation to both provisions when determining whether a prior conviction triggers increased penalties. United States v. Templeton, 543 F.3d 378, 380 (7th Cir.2008); United States v. Spells, 537 F.3d 743, 749 n. 1 (7th Cir.2008); United States v. Rosas, 410 F.3d 332, 335-36 (7th Cir.2005). Here Demetrius Partee’s and Oscar Rash’s prior convictions for fleeing an officer (when added to convictions for serious drug offenses and a violent felony) triggered 15-year mandatory minimum sentences under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1). Ritchie Bufford’s prior conviction for fleeing an officer was treated as a “crime of violence” for purposes of the career offender guideline, see §§ 4B1.1-1.2, and he was eventually sentenced to 200 months’ imprisonment. We affirm all three sentences.
The Wisconsin statute at issue here makes it unlawful to use a vehicle to knowingly flee or elude a police officer by willfully and wantonly disregarding the officer’s signal so that one endangers the police, pedestrians, or other vehicles; or by speeding away in the vehicle or extinguishing its lights. WIS. STAT. § 346.04(3). The Armed Career Criminal Act defines a “violent felony,” and the sentencing guidelines define a “crime of violence,” to include “burglary, arson, or extortion, [or a crime that] involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. *604§ 924(e)(2)(B). See U.S.S.G. § 4B1.2(a)(2). In Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 1586-87, 170 L.Ed.2d 490 (2008), the Supreme Court construed such crimes to involve “purposeful, violent, and aggressive conduct.”
Defendants argue that the Wisconsin statute does not require “purposeful” conduct. They contend that “purposeful” requires intent, and claim that the statute requires only reckless, but not intentional conduct. This argument, however, is foreclosed by our recent opinion in United States v. Dismuke, 593 F.3d 582 (7th Cir.2010), which issued after briefing in these cases had finished. In Dismuke, which directly addressed § 346.04(3) under the ACCA, we observed that vehicular flight easily satisfied Begay’s “purposeful” requirement because the statute requires that one “knowingly flee or attempt to elude.” Dismuke, 593 F.3d at 592-93.
Defendants also argue that the conduct prohibited by the statute is not “violent” or “aggressive” because, they contend, the act of using a vehicle to flee an officer does not inherently involve violence or aggression. This argument is also foreclosed by Dismuke. There we examined “whether fleeing is ‘violent’ in the way required by Begay ” and concluded that it was. Dis-muke, 593 F.3cl at 593-94 (“We ... hold that Wisconsin’s crime of vehicular fleeing involves conduct that is similarly ‘violent and aggressive’ to burglary, arson, extortion, or crimes that involve the use of explosives.”).1
AFFIRMED.
. We note as an aside, should there be any doubt as to the violent nature of vehicular llight, that on March 1, 2010, a woman in Milwaukee was killed when she was hit by a van being pursued by police — becoming the fourth person in two months to be killed by a driver fleeing Milwaukee police. Jesse Garza, Milwaukee woman killed by van fleeing police, Milwaukee Journal Sentinel, Mar. 2, 2010, available at 2010 WLNR 4319589. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479111/ | ORDER
Mario Salas-Rodriguez was arrested in September 2006 and charged with driving while intoxicated — his fifth such arrest. This time, however, the police discovered what others had apparently, and inexplicably, missed on the first four occasions: Salas-Rodriguez was in the United States illegally, having been previously removed from the country in 1992 following an aggravated felony conviction for possession of cocaine with intent to deliver. He was convicted on the state charges and sentenced to two years in jail and two years of supervised release. He was released from state custody in January 2009.
Just a month before his release, he was federally indicted on charges of illegal reentry by a previously deported alien in violation of 8 U.S.C. § 1326(a). He eventually pleaded guilty. The Presentence Investigation Report (“PSR”) recommended a Guidelines range of 77 to 96 months, largely due to his felony conviction. Salas-Rodriguez did not object to the PSR, but, in a presentence filing and at the sentencing hearing, Salas-Rodriguez asked the court to disregard the Guidelines for illegal re-entry cases because they resulted in an inappropriately harsh sentence based on a 17-year-old conviction. He also noted in his presen-tence filing that the government’s “delay foreclosed the possibility of a concurrent or partially concurrent sentence” and at the sentencing hearing his attorney noted that the delay “completely foreclosed any argument that I would have for concurrent or partially concurrent time.” At no point did Salas-Rodriguez expressly ask the district court to reduce his sentence to account for the time that he had already served in state court. The district court rejected the arguments about the undue harshness of the Guidelines in re-entry cases. It did not discuss the possibility of reducing the federal sentence to account for the time served on his unrelated state sentence. Salas-Rodriguez was sentenced to 84 months’ imprisonment. He appeals, claiming that the court erred by failing to discuss its rationale for declining to give a reduced sentence due to the lost opportunity for concurrent sentences.
We review the reasonableness of a sentence under an abuse-of-discretion standard, and we presume a sentence reasonable when it falls within the Guidelines. United States v. Omole, 523 F.3d 691, 696 (7th Cir.2008). But a district court must follow proper sentencing procedure, which includes addressing all of a defendant’s principal arguments that are “not so weak as not to merit discussion.” United States v. Villegas-Miranda, 579 F.3d 798, 801 (7th Cir.2009); United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.2005). *606Although our circuit has not taken a definitive position on whether a sentencing court may reduce a defendant’s sentence based on a lost opportunity to serve it concurrently with that of an entirely unrelated state crime, we have held that — at least unless and until we decide to the contrary — the argument is not so weak as to justify a district court in ignoring it altogether. Id. at 803.
The problem for Salas-Rodriguez is that he did not even request the district court to reduce his sentence based on the time served in state court — much less offer this as one of his principal arguments. Rather than ask the district court to reduce his sentence to account for his lost opportunity, Salas-Rodriguez told the judge that he was not asking for a reduction based on the unrelated state sentence. Just one passing sentence in the background of his 10-page presentence filing references the lost opportunity for a concurrent sentences argument, and the same passing reference was reiterated at the sentencing hearing only as an afterthought to the principal argument on the appropriateness of a significant enhancement for a nearly 20-year-old drug conviction. He neither cited cases from this or any other circuit permitting a court to reduce a sentence on these grounds nor advanced any argument for why such a reduction would be appropriate or even permissible. If Salas-Rodriguez did not think his lost opportunity to argue for a concurrent sentence warranted more than the passing reference he made to it, we see no reason to consider it one of his principal arguments. Because this argument was not a “principal argument,” (or even a minor argument citing some authority) the district court did not abuse its discretion by not addressing it. The sentence is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479113/ | ORDER
Kay Kim filed a lawsuit under 42 U.S.C. § 1983, alleging constitutional violations related to an upcoming competency hearing in a state prosecution on misdemeanor charges. Kim complained that the judge and psychiatrist had taken away her right of self-representation without due process and were conspiring to have her indefinitely committed to a mental institution. She sued the judge who ordered the hearing; the court-appointed psychiatrist who evaluated her; and the psychiatrist’s employer, Indiana University. The district court dismissed Kim’s federal lawsuit, concluding that none of the defendants could be sued under § 1983. Kim appeals, and we affirm.
Kim alleged in the complaint that the judge knew she could not be convicted of the criminal charges and so concocted this scheme to have her committed in lieu of going to trial. Kim asserted that the judge, upon receiving the report of the court-appointed psychiatrist diagnosing her with a paranoid personality disorder, appointed a lawyer to represent her at the competency hearing- — an act she says unfairly deprived her of her right to self-representation.
The district court granted the defendants’ motions to dismiss. The court concluded that the state-court judge was entitled to absolute immunity because she had ordered the competency examination and hearing in her official capacity. The court also determined that the psychiatrist had absolute immunity because his immunity was “co-extensive” with that of the judge who appointed him as an expert. Finally, the court found that Indiana University, as a state university, has immunity under the Eleventh Amendment and, additionally, could not be held liable under § 1983 solely on the basis of its status as the psychiatrist’s employer.
On appeal Kim asserts that the judge was not entitled to immunity because she had acted without any jurisdic*608tion. According to Kim, the judge lacked jurisdiction because the statute of limitations had run on her criminal cases. But the statute of limitations provides a defense to criminal charges and does not affect a court’s jurisdiction. See Wallace v. State, 753 N.E.2d 568 (Ind.2001). More significantly, judges have absolute immunity in § 1983 actions seeking monetary damages for judicial acts taken within their jurisdiction. Pierson v. Ray, 386 U.S. 547, 553-55, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Bradley v. Fisher, 13 Wall. 335, 80 U.S. 335, 351-52, 20 L.Ed. 646 (1871). Judges are immune for their judicial acts even if they commit “grave procedural errors,” act “maliciously,” or exceed the bounds of their authority as long as the case is not clearly outside their subject matter jurisdiction. Stump v. Sparkman, 435 U.S. 349, 356-57 & n. 7, 359, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). Here, the judge had subject matter jurisdiction to hear the misdemeanor charges against Kim.
Kim next attacks the grant of immunity for the court-appointed psychiatrist and asserts that those who conspire with a judge are not protected by the judge’s immunity. But “court-appointed experts, including psychiatrists, are absolutely immune from liability for damages when they act at the court’s direction.” Cooney v. Rossiter, 583 F.3d 967, 970 (7th Cir.2009); see Byrne v. Kysar, 347 F.2d 734, 736 (7th Cir.1965); Duzynski v. Nosal, 324 F.2d 924, 928-29 (7th Cir.1963); Bartlett v. Weimer, 268 F.2d 860, 862 (7th Cir.1959); see also Hughes v. Long, 242 F.3d 121, 127-28 (3d Cir.2001); Morstad v. Dep’t of Corr. & Rehab., 147 F.3d 741, 744 (8th Cir.1998); Johnson v. United States, 547 F.2d 688, 693 n. 36 (D.C.Cir.1976); Burkes v. Callion, 433 F.2d 318, 319 (9th Cir.1970). The court-appointed psychiatrist’s own immunity was a proper basis for dismissal.
Regarding Indiana University, Kim asserts that the university is not entitled to immunity under the Eleventh Amendment because, she says, it is separable from the state, as reflected by its independent efforts to raise funds from the public. This assertion is misguided. Indiana University is an arm of the state and shares its sovereign immunity. See Peirick v. Ind. Univ-Purdue Univ. Indianapolis Athletics Dep’t, 510 F.3d 681, 694-95 (7th Cir.2007); Porco v. Trs. of Ind. Univ., 453 F.3d 390, 395 (7th Cir.2006). The university’s independent power to raise funds does not affect its immunity under the Eleventh Amendment. See Kashani v. Purdue Univ., 813 F.2d 843, 846 (7th Cir.1987).
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479115/ | ORDER
Alfreda Christian’s discrimination suit against Walgreens, her former employer, was absorbed into her bankruptcy estate and settled by the estate’s trustee, who then voluntarily dismissed the suit. Christian now appeals from that dismissal, as well as from other orders that preceded it, in an effort to reclaim her suit against Walgreens. Because we lack jurisdiction over some of her claims, and because the claims that we can review have no merit, we dismiss and affirm in part.
Christian worked for Walgreens as an assistant manager until she was fired in August 2008. Three months later, she filed for Chapter 7 bankruptcy protection. The bankruptcy court discharged her debts and closed her bankruptcy case at the end of February 2009. The following month Christian filed a discrimination suit *610against Walgreens in federal district court based on her pre-bankruptcy termination. See 42 U.S.C. § 2000e-2; 42 U.S.C. § 1981. Eyeing a potential asset for the bankruptcy estate, the trustee successfully moved the bankruptcy court to reopen Christian’s case. The trustee then asked the district court overseeing the discrimination suit to substitute her as plaintiff in place of Christian. The district court granted the motion, and before long the trustee settled the claim, with Walgreens offering $3,500 in exchange for a voluntary dismissal.
At a hearing before the bankruptcy court in September 2009, Christian argued that the bankruptcy court should reconsider its order reopening the estate and that she, not the bankruptcy estate, was the rightful owner of the lawsuit. She did not, however, challenge the propriety of the settlement or present evidence that the lawsuit was worth more than the modest settlement price. The bankruptcy court approved the settlement and denied Christian’s motion to reconsider its decision to reopen the case. The trustee and Wal-greens then filed in the district court a joint stipulation to voluntarily dismiss the suit with prejudice under Fed.R.Civ.P. 41(a)(l)(A)(ii). This prompted an order from the district court the following day confirming the dismissal of the case with prejudice in accord with the parties’ stipulated dismissal.
On appeal Christian challenges (1) the bankruptcy court’s orders from September 2009 approving the settlement and denying Christian’s motion to reconsider the decision to reopen; (2) the district court’s order confirming the voluntary dismissal with prejudice; and (3) the district court’s order granting the trustee’s motion to substitute herself as plaintiff.
We turn first to Christian’s appeal from the September 2009 orders of the bankruptcy court, mindful that our jurisdiction is lacking if the district court never obtained jurisdiction over the orders. In re Vlasek, 325 F.3d 955, 960 (7th Cir.2003). For a district court to acquire jurisdiction over a bankruptcy order, a party must file a notice of appeal in the bankruptcy court within fourteen days of the entry of a final order (recently increased from ten). Fed. R. Bankr.P. § 8002(a); In re Salem, 465 F.3d 767, 772-73 (7th Cir.2006). Because Christian failed to do so, the district court never obtained jurisdiction over the orders of the bankruptcy court. See Caldwell-Baker Co. v. Parsons, 392 F.3d 886, 887-88 (7th Cir.2004). We therefore have no jurisdiction to review those orders ourselves.
Christian also appeals from the district court’s order granting the trustee’s motion to substitute herself as plaintiff in the discrimination suit. This appeal is timely and taken from a final order of the district court, so our jurisdiction is proper. See 28 U.S.C. § 1291. Christian challenges the substitution on the basis that the lawsuit did not belong in the bankruptcy estate. Her argument rests on the assumption that the bankruptcy trustee has no legal interest in suits filed by the debtor after a bankruptcy petition is filed. But this is true only with respect to claims that accrued after the debtor entered bankruptcy, see Cannon-Stokes v. Potter, 453 F.3d 446, 448 (7th Cir.2006); if the event giving rise to the claim occurred before the debtor filed, the claim belongs to the trustee, who has exclusive power to prosecute it, 11 U.S.C. § 541(a)(1); Biesek v. Soo Line R.R. Co., 440 F.3d 410, 413 (7th Cir.2006); In re Polis, 217 F.3d 899, 902 (7th Cir.2000). Here, Christian’s Title VII claim arose on August 26, 2008, the date that she received final notice from Walgreens that it had fired her. Smith v. Potter, 445 F.3d 1000, 1007 (7th Cir.2006); Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 637 (7th Cir.2004). *611That was three months before she filed for bankruptcy. Accordingly, the district court properly substituted the trustee as plaintiff.
Having decided that the trustee is the (only) proper party in the discrimination suit, we may easily dispatch Christian’s final argument — her challenge to the district court’s order confirming the dismissal of the case with prejudice. We say “confirming the dismissal” because the trustee had already voluntarily dismissed the case with prejudice the day before. As Walgreens observes, the trustee’s voluntary dismissal under Rule 41 was self-executing, requiring no further action from the district court, Marques v. Fed. Reserve Bank of Chi., 286 F.3d 1014, 1018 (7th Cir.2002). And, because it was a voluntary dismissal, the trustee could not herself have invoked our jurisdiction to review it. See Chavez v. Ill. State Police, 251 F.3d 612, 628 (7th Cir.2001); Boland v. Engle, 113 F.3d 706, 714 (7th Cir.1997); Lynk v. LaPorte Superior Court No. 2, 789 F.2d 554, 562 (7th Cir.1986); Geaney v. Carlson, 776 F.2d 140, 141-42 (7th Cir.1985). Christian is not the trustee, but her challenge to the dismissal order is groundless because, as we have decided, the trustee alone was the proper owner of the claim and therefore the real party in interest. Biesek, 440 F.3d at 413-14; Cable v. Ivy Tech State College, 200 F.3d 467, 475 (7th Cir.1999); Parker v. Wendy’s Int’l, Inc., 365 F.3d 1268, 1272 (11th Cir.2004). Under the real-party-in-interest doctrine, an action may be prosecuted only by the party entitled to the sought-after relief. Fed. R.Civ.P. 17(a); Rawoof v. Texor Petroleum Co., 521 F.3d 750, 756 (7th Cir.2008). Once she became a nonparty to the suit, Christian lacked a valid basis for attacking the court’s subsequent orders, including the dismissal.
DISMISSED in part and AFFIRMED in part. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479119/ | ORDER
McKeith Pearson, a federal prisoner acting pro se, sought damages from the government under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-2680, among other federal provisions, for the loss and destruction of personal property that Drug Enforcement Agency (“DEA”) agents seized during a search of his home. The district court dismissed all of his claims. Pearson argues on appeal that the *623court erred in dismissing his FTCA claim. We affirm.
In 2000 Pearson was indicted on drug and conspiracy charges in the Northern District of Florida; a warrant from that district was used to effectuate his arrest in Chicago. His indictment included an allegation of forfeiture to the government of his interest in property derived from or used to commit the alleged criminal acts. See 21 U.S.C. § 853(a)(l)(2). DEA agents searched his Chicago home and seized several items, including two computers (which Pearson valued at a combined $8,000), software ($800), and a digital scale ($400). The government used those items as evidence during its prosecution of Pearson in Florida. He pleaded guilty in 2001 and received a 30-year sentence.
In 2005 Pearson filed a motion in the Northern District of Illinois for the return of the property seized from his home five years earlier. The government asserted that the property had been disposed of or destroyed and suggested that he file an administrative tort claim with the DEA if he believed compensation was warranted. In light of the government’s assertion, the district court in 2006 dismissed Pearson’s motion as moot, and he filed an administrative tort claim with the DEA in May 2007. When relief was not forthcoming, he filed this suit in November 2008, alleging that the government had been negligent in handling his property and that it had taken his property without compensating him.
The district court dismissed Pearson’s suit for lack of subject-matter jurisdiction and for failure to state a claim.** See Fed.R.Civ.P. 12(b)(1), (6). The court concluded that it lacked jurisdiction over his FTCA claim because of 28 U.S.C. § 2680(c) — the “detention of goods” exeeption to the FTCA’s waiver of sovereign immunity. This exception forecloses FTCA claims arising from the unlawful detention of property by law enforcement officers, including the DEA agents who seized Pearson’s property. See Ali v. Federal Bureau of Prisons, 552 U.S. 214, 228, 128 S.Ct. 831, 169 L.Ed.2d 680 (2008). Pearson argued that the Civil Asset Forfeiture Reform Act of 2000, Pub.L. No. 106-185,114 Stat. 202 (“CAFRA”), amended the “detention of goods” exception to allow claims like his that were based on a loss of property seized for the purpose of forfeiture. See 28 U.S.C. § 2680(c)(1). But the court followed the reasoning of Foster v. United States, 522 F.3d 1071, 1075, 1077-79 (9th Cir.2008), and concluded that CAFRA only “rewaived” sovereign immunity when law enforcement officers seized the property solely for the purpose of forfeiture; seizure for any other purpose, or even for dual purposes including forfeiture, was not enough to escape the “detention of goods” exception. Because DEA agents seized Pearson’s property as evidence for his Florida prosecution, and not solely for forfeiture, CAFRA could not save his claim. The court noted, moreover, that because Pearson pleaded guilty to drug charges that were grounds for forfeiture under 21 U.S.C. § 853, his claim failed under 28 U.S.C. § 2680(c)(4), which foreclosed “re-waiver” to a claimant convicted of a crime for which his property was subject to forfeiture.
On appeal, Pearson challenges the dismissal of his FTCA claim. Section 2680(c)’s “detention of goods” exception to the FTCA’s waiver of sovereign immunity bars claims “arising in respect of ... the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement *624officer.” But CAFRA carved out an exception to the exception — a “re-waiver” of sovereign immunity — that allows claims based on injury or loss of property in the possession of law enforcement officers if four conditions are satisfied:
(1) the property was seized for the purpose of forfeiture under any provision of Federal law providing for the forfeiture of property other than as a sentence imposed upon conviction of a criminal offense;
(2) the interest of the claimant was not forfeited;
(3) the interest of the claimant was not remitted or mitigated (if the property was subject to forfeiture); and
(4) the claimant was not convicted of a crime for which the interest of the claimant in the property was subject to forfeiture under a Federal criminal forfeiture law.
§ 2680(c)(1) — (4); see Ali v. Federal Bureau of Prisons, 552 U.S. 214, 221, 128 S.Ct. 831, 169 L.Ed.2d 680 (2008).
Pearson renews his argument that the government seized his property for the purpose of forfeiture and that his claim therefore should have been permitted to go forward. To support his contention, he cites the allegation of forfeiture in his indictment. But, as the government argues, nothing in the indictment demonstrates that the DEA ever intended to seek forfeiture of the seized property. The indictment did not specify what was seized and simply stated that the property derived from proceeds of the crimes or used to commit the crimes could be forfeited. According to the docket from Pearson’s criminal case, no forfeiture proceedings were ever instituted against the property. Even if we assumed that the DEA seized Pearson’s property for the purpose of forfeiture, he cannot claim that his property was seized only for the purpose of forfeiture; his own complaint states that the property was seized as evidence. Foster, then, compels dismissal of his claim.
And even if we were to conclude that CAFRA “re-waiver” could occur when forfeiture was merely a purpose — rather than the only purpose — of a seizure, Pearson’s claim would still fail because of § 2680(c)(4). As the district court correctly noted, his guilty plea provided grounds for forfeiture under 21 U.S.C. § 853, which directs a court at sentencing to order forfeiture of a defendant’s property. His claim therefore falls outside of CAFRA’s exception. See Diaz v. United States, 517 F.3d 608, 613-14 (2d Cir.2008); Adeleke v. United States, 355 F.3d 144, 154 (2d Cir.2004).
Accordingly, we AFFIRM the judgment of the district court.
Pearson's failed claims under the Fifth Amendment and the Little Tucker Act, 28 U.S.C. § 1346(a)(2), are not at issue on this appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479121/ | ORDER
Kelvin Dorden pled guilty to distributing crack cocaine in violation of 21 U.S.C. § 841(a)(1), and on March 13, 2003, he was sentenced to 151 months imprisonment as a career offender under United States Sentencing Guideline § 4B1.1. In 2007, the Sentencing Commission reduced the base offense levels for crack cocaine offenses and made the changes retroactive. See-U.S.S.G. § 2Dl.l(c); U.S.S.G. Supp. to App. C 226-31 (2008) (“Amendment 706”). Dorden moved to reduce his sentence under 18 U.S.C. § 3582(c)(2), pursuant to which the sentencing court may reduce a sentence that was imposed based on a guideline sentencing range that has since been lowered, with retroactive effect. Finding that 18 U.S.C. § 3582(c)(2) did not permit a reduction of Dorden’s sentence, the district court denied his motion. We affirm.
18 U.S.C. § 3582(c)(2) states that:
in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
If Dorden had been sentenced under Sentencing Guideline § 2Dl.l(c), which applies different offense levels to different drug-quantities and was amended to reduce the base offense levels for crack cocaine offenses after Dorden was sentenced, section 3582(c)(2) might have authorized a sentence reduction. But Dorden’s sentence was not based on section § 2Dl.l(c). His sentence was based on section 4B1.1, which applies to career offenders and was not amended. As the Sentencing Commission has explained, “a reduction in the defendant’s term of imprisonment is not authorized under 18 U.S.C. § 3582(c)(2) and is not consistent with this policy statement if ... the amendment does not have the effect of lowering the defendant’s ap*630plicable guideline range because of the operation of another guideline or statutory provision (e.g. a statutory mandatory minimum term of imprisonment).” U.S.S.G. § 1B1.10, cmt. n. 1(A). Here the unamended career offender guideline operated to trump the amended crack cocaine guideline. Dorden therefore is not eligible to seek a reduction of his sentence under section 3582(c)(2).
Our decision in United States v. Forman, 553 F.3d 585 (7th Cir.2009), controls. Foreman was also sentenced as a career offender and sought resentencing under 18 U.S.C. § 3582(c)(2) when the drug quantity guidelines were amended. We explained then: “Amendment 706 provides no benefit to career offenders.” 553 F.3cl at 589, citing United States v. Liddell, 543 F.3d 877, 882 n. 3 (7th Cir.2008); United States v. Sharkey, 543 F.3d 1236, 1239 (10th Cir.2008); United States v. Moore, 541 F.3d 1323, 1327-28 (11th Cir.2008); United States v. Thomas, 524 F.3d 889, 890 (8th Cir.2008).
D orden’s arguments that his ultimate sentence was based on section 2Dl.l(c) and not on section 4B1.1 are not persuasive. He argues that before considering a defendant’s status as a career offender, section 1B1.1 directs a sentencing court to consider the drug quantity involved in the underlying offense. However, a career offender’s ultimate sentence is not based “in part” on the initial guideline range of section 2D1.1 because that range is completely trumped by the career offender guidelines of section 4B1.1. The offense level for the career offender guideline is governed by the unchanged statutory maximum for the offense of conviction, not by the amended drug quantity provisions of section 2D 1.1.
Also, Dorden offers United States v. Hedgebeth, 2008 WL 2719574 (E.D.Pa. July 10, 2008), in which the court had found that the applicable guideline range was 60 to 71 months but then imposed its initial sentence of 48 months, a sentence that was 12 months below the statutory minimum sentence and the bottom of the range. But Hedgebeth was not a career offender. He was a cooperating defendant who obtained the government’s motion pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1. On Hedgebeth’s later motion to reduce his sentence under section 3582(c)(2) based on Amendment 706, the court stated that because it had considered the original applicable guideline range in determining how much of a reduction was warranted for Hedgebeth’s assistance to the government when it imposed the original sentence, it was “at least to some extent, influenced by, and therefore ‘based [in part] on a sentencing range that has been subsequently lowered’ within the meaning of § 3582(c)(2).” Id. at *1. The court’s decision to reduce his sentence simply followed Advisory Note 3 to U.S.S.G. § 1B1.10, which advises that a sentence below an original guideline range may also be reduced where a retroactive amendment affects the original range. The considerations that operated to Hedgebeth’s advantage simply are not applicable here and do not help Dorden.
Dorden’s reliance on language in Witte v. United States, 515 U.S. 389, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995), is also misplaced. Witte argued that he was protected under the Double Jeopardy Clause from prosecution for a cocaine smuggling offense because the quantity of cocaine at issue had been taken into account when he was sentenced for a separate marijuana smuggling offense. The Supreme Court disagreed, finding that it was not “punishment” for the sentencing court to take into account uncharged criminal conduct in setting — and enhancing — Witte’s sentence. The Double Jeopardy Clause did not prohibit Witte from later being prosecuted for the enhancing conduct. 515 U.S. at 399-*631400, 115 S.Ct. 2199. Dorden relies upon language in Witte that refers generally to the drug guideline under which Witte was sentenced as the “applicable Guideline:”
By including the cocaine from the earlier transaction — and not just the marijuana involved in the offense of conviction — in the drug quantity calculation, the District Court ended up with a higher offense level (40), and a higher sentence range (292 to 365 months), than it would have otherwise under the applicable Guidelin-e, which specifies different base offense levels depending on the quantity of the drugs involved. U.S.S.G. § 2D1.1.
Witte, 515 U.S. at 399, 115 S.Ct. 2199 (emphasis added). Based on this language, Dorden argues that the underlying offense (marijuana smuggling for Witte, distribution of crack cocaine for Dorden) provides the applicable guideline, and that other considerations (cocaine smuggling for Witte, career offender status for Dor-den) are enhancements to that applicable guideline.
Witte does not support that interpretation. In Witte, only one sentencing guideline — section 2D1.1 — was in play in determining the appropriate base offense level, which was determined by considering both the charged and uncharged quantities of drugs involved in Witte’s drug smuggling enterprise. Witte’s charged conduct (marijuana smuggling) and the uncharged conduct (cocaine smuggling) fell under the same applicable sentencing guideline. One drug did not trump the other for sentencing purposes. In Dorden’s case, although he was charged with distribution of crack cocaine, he was sentenced as a career offender under the career offender guideline because, for sentencing purposes, his status as a career offender completely eclipsed the guideline calculations for crack cocaine distribution.
Because Dorden is not eligible for a reduction in sentence under section 3582(c)(2), we need not address his argument that he would also be entitled to a full sentencing rehearing. The decision of the trial court is affirmed. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479131/ | RAWLINSON, Circuit Judge,
concurring:
I concur in the result. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479136/ | MEMORANDUM **
Miranda Siassi Moghadam, a native and citizen of Iran, petitions for review of the Board of Immigration Appeals’ (“BIA”) order, dismissing her appeal from an immigration judge’s decision denying her motion to reconsider a prior order denying a motion to reopen based on ineffective assistance of counsel. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reconsider and review de novo constitutional claims. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We deny in part and dismiss in part the petition for review.
The agency did not abuse its discretion by denying Siassi Moghadam’s motion to reconsider on the ground that she failed to establish prejudice, where she did not present any evidence that the state criminal court ever recalculated her sentence. See id. at 793-94; 8 U.S.C. § 1101(a)(48)(B)(“Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of a law ....”) (emphasis added).
We lack jurisdiction to review Siassi Moghadam’s remaining contentions because she failed to exhaust them before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).
Counsel Tamiko O. Moore’s motion to withdraw as counsel on behalf of petitioner is granted. Court records shall be amended to reflect that Miranda Siassi Mogha-dam, located at 550 Montgomery Street, *815Suite 400, San Francisco, CA 94111 is representing herself.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479140/ | PER CURIAM:
Having reviewed the record and the briefs of the parties, we find no reversible error in the district court’s order granting *965summary judgment in favor of Chris De-Marco and Jeff Watson.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479145/ | ON MOTION
ORDER
Upon consideration of Terry L. Crawford’s unopposed motion to voluntarily dismiss this appeal,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479148/ | ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479151/ | ORDER
Petitioner having filed the required Statement Concerning Discrimination,
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The court’s November 10, 2009 dismissal order is vacated, the mandate is recalled, and the petition for review is reinstated.
(2) Petitioner’s brief is due on or before December 28, 2009. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479156/ | ORDER
Appellant having paid the required docketing fee,
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The court’s November 10, 2009 dismissal order is vacated, the mandate is recalled, and the notice of appeal is reinstated.
(2) Respondent’s brief is due on or before December 28, 2009. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479137/ | MEMORANDUM **
Miranda Siassi Moghadam, a native and citizen of Iran, petitions for review of the Board of Immigration Appeals’ (“BIA”) order, dismissing her appeal from an immigration judge’s decision denying her motion to reconsider a prior order denying a motion to reopen based on ineffective assistance of counsel. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reconsider and review de novo constitutional claims. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We deny in part and dismiss in part the petition for review.
The agency did not abuse its discretion by denying Siassi Moghadam’s motion to reconsider on the ground that she failed to establish prejudice, where she did not present any evidence that the state criminal court ever recalculated her sentence. See id. at 793-94; 8 U.S.C. § 1101(a)(48)(B)(“Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of a law ....”) (emphasis added).
We lack jurisdiction to review Siassi Moghadam’s remaining contentions because she failed to exhaust them before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).
Counsel Tamiko O. Moore’s motion to withdraw as counsel on behalf of petitioner is granted. Court records shall be amended to reflect that Miranda Siassi Mogha-dam, located at 550 Montgomery Street, *815Suite 400, San Francisco, CA 94111 is representing herself.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479138/ | MEMORANDUM **
Andreas Vasquez-Zarco, a native and citizen of Mexico, petitions for review of a Board of Immigration Appeals (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for cancellation of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for substantial evidence the BIA’s determination of continuous physical presence. Landin-Zavala v. Gonzales, 488 F.3d 1150, 1151 (9th Cir.2007). We review de novo questions of law and due process claims. Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir.2008). We deny the petition for review.
Substantial evidence supports the BIA’s determination that Vasquez-Zarco failed to establish the ten years of continuous physical presence required for cancellation of removal. See 8 U.S.C. § 1229b(d)(2) (departure in excess of ninety days breaks continuous physical presence). Vasquez-Zarco fails to point to any authority in support of his theory of constructive presence. Cf 8 U.S.C. § 1229b(l)(A) (Alien must be “physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application.”)
Vasquez-Zarco’s due process claim is not supported by the record.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479141/ | PER CURIAM:
Having reviewed the record and the briefs of the parties, we find no reversible error in the district court’s order granting *965summary judgment in favor of Chris De-Marco and Jeff Watson.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479147/ | ORDER
Petitioner having filed the required brief, it is
ORDERED that the order of dismissal and the mandate be, and the same hereby are, VACATED and RECALLED, and the petition for review is REINSTATED.
Respondent should compute the due date for filing its brief from the date of filing of this order. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479149/ | ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479150/ | ORDER
Petitioner having filed the required Statement Concerning Discrimination,
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The court’s November 10, 2009 dismissal order is vacated, the mandate is recalled, and the petition for review is reinstated.
(2) Petitioner’s brief is due on or before December 28, 2009. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479153/ | ORDER
The petitioner having failed to file the required Statement Concerning Discrimination, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479157/ | ORDER
Appellant having paid the required docketing fee,
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The court’s November 10, 2009 dismissal order is vacated, the mandate is recalled, and the notice of appeal is reinstated.
(2) Respondent’s brief is due on or before December 28, 2009. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479158/ | *21ON MOTION
LOURIE, Circuit Judge.
ORDER
The United States moves to affirm the judgment of the United States Court of Federal Claims in this case. Kerry R. Hamilton opposes and moves to continue the stay of the briefing schedule and consolidate this case with several other cases. The United States replies.
The briefing schedules in this case and several other cases were stayed pending this court’s disposition of Easter v. United States, 2008-5187. This court recently issued a decision in Easter, affirming the judgment of the Court of Federal Claims that federal employees who are required to use government vehicles when driving between their homes and their places of work are not entitled to compensation for such travel time under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. Easter v. United States, 575 F.3d 1332 (Fed.Cir.2009).
In Easter, we noted that the dispute in that case was “identical in all material respects to the dispute that was before this court less than three years ago in Adams v. United States, 471 F.3d 1321 (Fed.Cir.2006) and is similar to the dispute that was previously before this court in Bobo v. United States, 136 F.3d 1465 (Fed.Cir.1998).” Easter, 575 F.3d at 1333. We stated that “[t]he task in [Easter] is therefore mainly to determine whether there is any reason for us to distinguish or depart from the Adams and Bobo decisions. We conclude that there is not, and we therefore affirm the decision of the Court of Federal Claims granting summary judgment in favor of the government.” Id.
Similarly, in this case, the Court of Federal Claims noted that Adams and Bobo controlled its disposition of the case, notwithstanding the plaintiffs disagreement with the holdings of those cases. Factually, this case is very similar to Easter. On appeal, counsel for the appellant makes the same arguments that he made in Easter. This case, like Easter, Adams, and Bobo, involves a federal employee seeking overtime pay for the time spent driving to and from work in a government-owned vehicle. The Court of Federal Claims in this case properly relied on Adams and Bobo and held that overtime pay is not permitted for such an activity in this case.
Under the circumstances, we determine that affirmance of the judgment of the Court of Federal Claims is required by our precedent. See Joshua v. United States, 17 F.3d 378, 380 (Fed.Cir.1994) (“summary disposition is appropriate, inter alia, when the position of one party is so clearly correct as a matter of law that no substantial question regarding the outcome of the appeal exists”).
Accordingly,
IT IS ORDERED THAT:
(1) The motion for affirmance is granted. The stay of the briefing schedule is lifted and the judgment of the Court of Federal Claims is affirmed.
(2) The motion to continue the stay of the briefing schedule and consolidate is denied.
(3) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479162/ | ON MOTION
LOURIE, Circuit Judge.
ORDER
The United States moves to affirm the judgment of the United States Court of Federal Claims in this case. The appellants oppose and move to continue the stay of the briefing schedule and consolidate this case with several other cases. The United States replies.
The briefing schedules in this case and several other cases were stayed pending this court’s disposition of Easter v. United States, 2008-5187. This court recently issued a decision in Easter, affirming the judgment of the Court of Federal Claims that federal employees who are required to use government vehicles when driving between their homes and their places of work are not entitled to compensation for such travel time under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. Easter v. United States, 575 F.3d 1332 (Fed.Cir.2009).
In Easter, we noted that the dispute in that case was “identical in all material respects to the dispute that was before this court less than three years ago in Adams v. United States, 471 F.3d 1321 (Fed.Cir.2006) and is similar to the dispute that was previously before this court in Bobo v. United States, 136 F.3d 1465 (Fed.Cir.1998).” Easter, 575 F.3d at 1333. We stated that “[t]he task in [Easter ] is therefore mainly to determine whether there is any reason for us to distinguish or depart from the Adams and Bobo decisions. We conclude that there is not, and we therefore affirm the decision of the Court of Federal Claims granting summary judgment in favor of the government.” Id.
*24Similarly, in this case, the Court of Federal Claims noted that Adams and Bobo controlled its disposition of the case, notwithstanding the plaintiffs’ disagreement with the holdings of those cases. Factually, this case is very similar to Easter. On appeal, counsel for the appellants makes the same arguments that he made in Easter. This case, like Easter, Adams, and Bobo, involves federal employees seeking overtime pay for the time spent driving to and from work in government-owned vehicles. The Court of Federal Claims in this case properly relied on Adams and Bobo and held that overtime pay is not permitted for such an activity in this ease.
Under the circumstances, we determine that affirmance of the judgment of the Court of Federal Claims is required by our precedent. See Joshua v. United States, 17 F.3d 378, 380 (Fed.Cir.1994) (“summary disposition is appropriate, inter alia, when the position of one party is so clearly correct as a matter of law that no substantial question regarding the outcome of the appeal exists”).
Accordingly,
IT IS ORDERED THAT:
(1) The motion for affirmance is granted. The stay of the briefing schedule is lifted and the judgment of the Court of Federal Claims is affirmed.
(2) The motion to continue the stay of the briefing schedule and consolidate is denied.
(3) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
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