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https://www.courtlistener.com/api/rest/v3/opinions/8479319/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cruso R. Wallace appeals from the district court’s orders denying his 18 U.S.C. § 3582 (2006) motion for reduction of sentence and his motion for reconsideration. We have reviewed the record in this case and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Wallace, No. 5:02-cr-00101-3, 2009 WL 2392152 (S.D. W. Va. June 9 & July 31, 2009). In addition, we note that Wallace’s claims on appeal are barred by our decision in United States v. Dunphy, 551 F.3d 247, 251-52 (4th Cir.2009), cert. denied, — U.S.-, 129 S.Ct. 2401, 173 L.Ed.2d 1296 (2009) (finding jurisdictional bar to reducing prison term below the amended Guidelines range). 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/8479282/ | ON MOTION
SCHALL, Circuit Judge.
ORDER
The parties jointly move to vacate the final decisions of the Merit Systems Protection Board in consolidated petitions SF3443020159-X-1 and SF3443020159-C-2, and remand to the Board for further proceedings.
Larry M. Dow filed two petitions to enforce a final board order finding that the General Services Administration (GSA) violated Dow’s veteran’s preference rights under the Veterans Employment Opportu*3nity Act of 1998 (VEOA) in failing to hire him, and ordering GSA to reconstruct the hiring process in question. The Board denied both petitions. During this time, GSA tentatively offered Dow a position as a human resource specialist.
The parties request that this court vacate the Board’s decisions on review and remand these consolidated appeals so that the Board may consider whether GSA’s offer of a human resource specialist position to Dow constitutes a sufficient remedy for the initial VEOA violation.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion is granted. The Board’s decisions are vacated and the case is remanded for further proceedings consistent with this order.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479284/ | ORDER
Upon review of the Consent Motion to Terminate Appeal filed by Plaintiffs-Appellants Solvay Solexis S.p.A. and Solvay Solexis, Inc., it is hereby:
ORDERED that the Consent Motion is granted; and it is further
ORDERED that the above-captioned action is dismissed; and it is further
ORDERED that each party shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479286/ | *4ORDER
The petitioner having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479288/ | ORDER
The appellant having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479290/ | 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/8479292/ | ORDER
The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) and to file the brief required by Federal Circuit Rule 31(a) within the time permitted, 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/8479294/ | ON MOTION
MOORE, Circuit Judge.
ORDER
The Boeing Company (Suecessor-in-in-terest of Rockwell International Corporation) moves to dismiss the above-captioned appeals for lack of jurisdiction and moves for costs. The Secretary of Energy opposes. Boeing replies.
Rockwell International Corporation entered into a contract with the Department of Energy (DOE) for the management, operation, and maintenance of the Rocky Flats Nuclear Weapons Plant. The contract provides that DOE will reimburse Rockwell for costs incurred in defending certain lawsuits. However, the contract further provides in clause 54(e)(32) that “[cjosts incurred in defense of any civil or criminal fraud proceeding or similar proceeding (including the filing of any false certification) brought by the Government *11where the Contractor ... is found liable ... to a charge of fraud or similar proceeding” are not allowable.
In July 1989, James Stone brought an action against Rockwell under the False Claims Act (FCA), alleging that Rockwell had misrepresented or failed to disclose certain environmental matters at Rocky Flats. The United States initially declined to intervene in the litigation. However, on November 14, 1995, the United States moved for leave to intervene. The United States’ motion was granted, and the United States and Mr. Stone filed an amended complaint alleging violations of the FCA, common law fraud, breach of contract, payment by mistake, and unjust enrichment. Rockwell prevailed on all counts except for the FCA claims. A jury found Rockwell liable on three of the ten claims asserting FCA violations and found Rockwell not liable on all remaining claims.
DOE reimbursed Rockwell for all defense costs that Rockwell incurred up to the date that the United States filed its motion for leave to intervene, and deemed unallowable all defense costs incurred after that date. In May 2005, Boeing, Rockwell’s successor, requested a contracting officer’s decision on its claim in the amount of $11,344,081.14 for unreimbursed costs that Rockwell incurred in defending itself in the Stone litigation. The contracting officer denied Boeing’s claim in its entirety and determined that the United States has a claim against Boeing for $4,060,669.03 in previously reimbursed defense costs plus interest of $2,522,746.50. Boeing appealed.
On cross motions for summary relief concerning the meaning of contract clause 54(e)(32), the Civilian Board of Contract Appeals (CBCA) ruled that Boeing is entitled to recover the costs of defending itself in the Stone litigation on those counts and claims where it prevailed, but cannot recover the costs of defending itself against the FCA claims on which it was found liable. The CBCA requested and obtained briefing on whether Boeing is entitled to “common costs” — i.e., those costs that may be attributable to both claims where Boeing prevailed and claims where it was found liable. The CBCA’s decision did not address these so-called “common costs.” DOE appeals the CBCA’s ruling, and Boeing cross-appeals.
Boeing argues that its claim for unreim-bursed costs and DOE’s claim for reimbursement of costs and interest constitute a single claim and that because the contracting officer decided both entitlement and quantum but the CBCA decided only entitlement, the CBCA’s decision is not final and the appeals are premature. Boeing further argues that, even if its claim and DOE’s claim are considered separate claims, the CBCA has not fully decided all issues relating to entitlement. Specifically, Boeing maintains that the CBCA failed to decide entitlement to common costs. Boeing also points to a footnote in the CBCA decision that states: “The issue in this case is the meaning of clause (e)(32). Other clauses in the contract may be applicable to the allowability of some or all of the claimed costs.”
DOE responds that there were three separate claims involved in the contracting officer’s decision: Boeing’s claim, DOE’s claim for reimbursement, and DOE’s claim for interest. DOE further responds that the CBCA’s decision is final because the contracting officer decided only entitlement with respect to Boeing’s claim and the CBCA fully decided all issues relating to entitlement on that claim. DOE also contends that because the CBCA declined to adopt language proposed by Boeing that would have granted entitlement to common costs, we should read the CBCA’s *12decision as rejecting Boeing’s entitlement to such costs.
We have jurisdiction to review only final orders of agency boards of contract appeals. 28 U.S.C. § 1295(a)(10). Whether a board of contract appeals decision is appealable depends on “the scope and extent of the contracting officer’s decision.” Teller Envtl. Sys. Inc. v. United States, 802 F.2d 1385,1389 (Fed.Cir.1986).
In this case, the parties dispute whether the case involves a single claim or three separate claims. We need not decide whether the case involves a single claim or multiple claims, however, because even if there are multiple claims, the CBCA’s decision on Boeing’s claim did not fully decide entitlement. The contracting officer ruled that Boeing was not entitled to prevail on any part of its claim for $11,-344.081.14 in unreimbursed costs that Rockwell incurred in defending itself in the Stone litigation. The CBCA disagreed, deciding that contract clause 54(e)(32) allows Boeing to recover costs of defending against claims on which it prevailed but not on which it was found liable. Importantly, the CBCA did not decide whether contract clause 54(e)(32) allows Boeing to recover common costs — i.e., costs incurred defending against both claims where it prevailed and claims where it was found liable. Under these circumstances, we determine that the CBCA has not fully decided Boeing’s entitlement to its claimed costs and thus that the CBCA’s decision is not final.
With respect to Boeing’s request for costs incurred for this appeal, although we determine that the CBCA has not issued a final decision, DOE had an arguable basis for suggesting otherwise. Thus, an award of costs is not warranted.
Accordingly,
IT IS ORDERED THAT:
(1) The motion to dismiss is granted.
(2) The motion for costs is denied. Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479296/ | OPINION
SMITH, Circuit Judge.
Louis Mister appeals his convictions for aiding and abetting violations of 18 U.S.C. *173§ 1951(a) (extortion under color of official right) and 18 U.S.C. § 666(a)(1)(B) (solicitation of a corrupt payment). We will affirm.
Mister was involved in the local politics of Pleasantville, New Jersey. He was president of a political organization called the Real Democratic Club (“RDC”), a 25-30 member group dedicated to electing public officials in and around Pleasantville. RDC members devised a plan to win a majority of the seats on the Pleasantville Board of Education (“PBOE”), and then use those positions to solicit bribes from local businesses in exchange for PBOE contracts. Mister was not on the PBOE, but was friendly with several RDC members who were, including Jayson Adams, president of the PBOE; James Pressly, vice president of the PBOE; James McCormick; Maurice Callaway; and Rafael Velez. In April 2006, John D’Angelo, a local insurance broker, informed the FBI that PBOE members had approached him and asked him to pay bribes. The FBI began an investigation, using D’Angelo and Bruce Begg, the CEO of a local roofing company, as informants.
Over the next several months, RDC members, including members on the PBOE, undertook a plan to award PBOE insurance and roofing contracts to D’Angelo and Begg in exchange for bribes. On June 5, 2006, Mister and Callaway met Begg in Begg’s vehicle, which was parked in the empty parking lot of a restaurant. The purpose of the meeting was for Begg to deliver $3,000 in cash to Callaway in exchange for roofing business. Begg and Mister sat in the front of the vehicle, while Callaway sat in the back. Callaway was a candidate in an upcoming election for the Pleasantville City Council. He told Begg that he brought Mister with him because Mister was “a good friend” and because “me being the candidate[,] I always bring somebody with me[.]” Begg told Callaway that he only had $1,500 with him, but promised to deliver the rest of the money later that day. Mister counted the money from Begg while Begg and Callaway conversed. Begg mentioned that he’d spoken to PBOE member James Pressly, and would be meeting with him. Callaway told Begg that he too had spoken to Pressly and that “everything [was] done and going-through the way it’s supposed to be going.”
Begg also mentioned that he had received a call from Arnold Rice, who was in charge of “maintenance” at the schools, and the “second man in control” behind a man named Speedy Marsh. Begg said that he had arranged for a meeting with Rice soon. Callaway told Begg that Rice was involved “in the building thing” and was “the right guy” for Begg to talk to about it. Then the following exchange occurred:
Begg: So Speedy’s like what? Head of buildings and grounds or something? Callaway: Yeah, you got it. Head of facilities.
Begg: Okay. Alright. That’s good. I’ll ah, ... I’ll get together with him. [At that point, Begg reached for the $1,500] Callaway: Yeah, you can give it, give it to him [nodding towards Mister].... And uhm, if there’s any problems, me and him will take care of it. Me and the guy you gonna meet with.
Begg: Okay.
Callaway: Try to get you on the right step, and then you know, you looking at the big stuff, here.
Begg: Right. Right.
Callaway: You know, the schools — the complete schools.
Begg: Right. Right.
Callaway: That’s the way we’ll go.
Begg: Okay.
*174Later that day, Mister met Begg at a rest stop elsewhere in New Jersey and accepted the other $1,500 cash payment on behalf of Callaway.
On August 6, 2006, James McCormick was appointed to the PBOE. This gave the RDC a majority of the seats on the Board. On August 23, 2006, Adams, Mister, and D’Angelo met. Adams introduced Mister to D’Angelo as “the cat that’s makin’ this meeting happen.” Referring to Mister, D’Angelo asked Adams, “[C]an I talk in front of him?” Adams responded in the affirmative. Eventually, the conversation turned to Mister and Adams’s aspirations to capture the Pleasantville City Council in the same way they had captured the PBOE. The following exchange occurred between Adams and Mister:
Mister [to D’Angelo]: With this, you need to just kick butt over there in the political arena and grab some seats. Adams: Just need to maintain control of that school board that’s all.
Mister: Need to take hold of Pleasant-ville. Then you take control of Pleas-antville, uh, council and uh, then we go after the contracts.
D’Angelo then suggested that Adams and Mister meet with Begg to talk about politics and fund-raising. Adams and Mister agreed. Mister responded:
We’ll do that we um, because um, once we, once we get um, Pleasantville, we get two more seats in Pleasantville on that council ’cause we got Pete and we got Line. We get four, we lock that council up then we lock them contracts up too.... That’s the goal.
On September 12, 2006, the PBOE voted to award D’Angelo’s company the contract for insurance brokerage services for the school district.
FBI agents arrested Mister, Adams, Callaway, and eight others on September 6, 2007. When he was first interviewed, Mister denied meeting with Begg and Cal-laway in the parking lot on June 5, 2006. After he was told that videotape existed of the meeting, however, Mister changed his story. He admitted that he was at the meeting, but said that Callaway had misled him about the nature of the payment. According to Mister, Callaway had told him that the payment was a contribution to Callaway’s campaign for city council. Mister had agreed to accompany Callaway to the meeting because Callaway had told him that, as a candidate, he could not “touch the money.”
A four-count superseding indictment was returned against Mister on March 12, 2008. Count I charged that Mister conspired with Callaway to obstruct interstate commerce by extortion under color of official right, in violation of 18 U.S.C. § 1951(a). Count II charged that Mister aided and abetted Callaway’s attempts to obstruct interstate commerce by extortion under color of official right, in violation of 18 U.S.C. § 1951(a) and 18 U.S.C. § 2. Count III charged Mister with aiding and abetting Callaway’s solicitation of a corrupt payment, in violation of 18 U.S.C. § 666(a)(1)(B) and 18 U.S.C. § 2. Count IV charged that Mister aided and abetted an attempted extortion under color of official right, by obtaining money on behalf of James McCormick, in exchange for McCormick’s agreement to steer the PBOE insurance brokerage contract to D’Angelo. See 18 U.S.C. § 1951(a); 18 U.S.C. § 2.
A jury convicted Mister on Counts II and III but acquitted him on the others. Mister moved for a new trial pursuant to Rule 33, or a judgment of acquittal under Rule 29. The District Court denied both motions, and sentenced Mister to one year and one day of imprisonment and three years of supervised release. Mister filed a *175timely notice of appeal. We have jurisdiction under 28 U.S.C. § 1291.
Mister raises three issues in this appeal. First, he argues that there was insufficient evidence to sustain his convictions on Counts II and III. Second, he claims that the government constructively amended his indictment at trial, in violation of the Fifth Amendment. Third, he argues that prosecutors violated his due process rights by improperly arguing “guilt by association” during closing arguments. We reject each of these claims.
I.
“Our review of the sufficiency of the evidence is governed by strict principles of deference to a jury’s findings.” United States v. Anderskow, 88 F.3d 245, 251 (3d Cir.1996) (internal quotations omitted). If the jury’s verdict was supported by substantial evidence, we must uphold it. Burks v. United States, 437 U.S. 1, 17, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). The substantial evidence inquiry requires us to decide whether “any rational trier of fact” could have found Mister guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original). In deciding this question, we view the evidence in the light most favorable to the government, Burks, 437 U.S. at 17, 98 S.Ct. 2141, and draw all reasonable inferences in the government’s favor. Anderskow, 88 F.3d at 251.
Mister argues that there was insufficient evidence to conclude that he knowingly and willfully accepted money from Begg for the purpose of aiding and abetting extortion, or aiding and abetting Calla-way’s solicitation of a corrupt payment. He points to Callaway’s testimony that Callaway never told him that the money was for a bribe. In fact, according to Mister, Callaway affirmatively misled him by telling him that the money was to pay campaign workers for a primary election the following day. Mister points out that there was no mention of contracts or roofing during the conversation between Begg and Callaway, and claims in any event that he was distracted during their conversation because he was busy counting the money. He also points to trial evidence indicating that he functions at a low-to-average intelligence level as further proof that he did not and could not have understood that the payment he accepted was in exchange for Callaway’s promise to steer PBOE roofing contracts to Begg.
We conclude that there was sufficient evidence to support the jury’s verdict. Mister was present during the entire conversation between Begg and Callaway. During that conversation, Begg told Calla-way that he had spoken to James Pressly, a school board member. Callaway assured Begg that he too had spoken with Pressly and that “everything [was] done and going-through the way it’s supposed to be going.” Callaway also told Begg that Arnold Rice, a supervisor within the school’s maintenance department, was involved in “the building thing” and that Rice was “the right guy” for Begg to talk to about it. Presumably, these maintenance employees would have been relevant to the procurement of the school’s roofing business. After Begg handed Callaway the $1,500, Cal-laway told him he was on “the right step” and that Begg was “looking at the big stuff here ... the schools — the complete schools.” Also, and significantly, Mister initially denied meeting with Callaway and Begg in the parking lot, and only recanted when confronted with videotape evidence to the contrary. The jury could have treated this false exculpatory statement as evidence of Mister’s consciousness of guilt. See United States v. Kemp, 500 F.3d 257, 296 (3d Cir.2007) (“It is well-settled that *176untrue exculpatory statements may be considered as circumstantial evidence of the defendant’s consciousness of guilt,”' quoting United States v. Rajewski, 526 F.2d 149,158 (7th Cir.1975)). Under these facts, we cannot say that no rational jury could have convicted Mister. A rational jury could have concluded that he knew that the payments were a bribe from Begg to Callaway in exchange for business from the PBOE.
II.
The Fifth Amendment provides in relevant part that “[n]o person shall be held to answer for a capital! ] or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury[.]” U.S. Const, amend. V. Accordingly, a defendant may be tried and convicted only on those charges contained in the indictment returned by a grand jury. Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). “An indictment is constructively amended when, in the absence of a formal amendment, the evidence and jury instructions at trial modify essential terms of the charged offense in such a way that there is a substantial likelihood that the jury may have convicted the defendant for an offense differing from the offense the indictment returned by the grand jury actually charged.” United States v. Daraio, 445 F.3d 253, 259-60 (3d Cir.2006). Mister argues that his indictment was constructively amended, in that the indictment charged Mister with aiding and abetting a scheme to exchange money for influence on the PBOE, while prosecutors attempted to prove at trial that Mister aided in the exchange of money for future favors from Callaway on the Pleasantville City Council. Because Mister did not raise this claim at trial, we review for plain error. United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
The • indictment was narrowly drawn, and specifically accused Mister of aiding a scheme to exchange money for favors from the PBOE.1 In light of this specificity, we agree that it would have been improper for the government to encourage the jury to convict Mister for participating in a scheme to trade money for official action from Callaway as a member of the city council. We do not think, however, that the government did so. During closing, the government twice cited Mister’s statement to Adams that the RDC needed to “take a hold of Pleasantville. Then [we] take control of Pleasantville ... council and ... then we go after the contracts.” We conclude that the government’s references to this statement did not constructively amend the indictment, for reasons ably explained by the District Court:
Defendant’s first reference to “Pleasant-ville” ... appears to be a reference to the Pleasantville PBOE itself, the school board. The second reference, “Then you take control of Pleasantville ... council,” refers to the council of Pleasantville. The word “then” clearly indicates both to the Court and to a jury that Defendant was talking about corrupting two distinct entities: first corrupt the school board, then corrupt the council. Defendant also went on to talk about efforts to unseat the Mayor. Thus, this evidence shows that in Defendant’s mind, the effort to corrupt the PBOE was part of a larger scheme to corrupt the whole *177town, which he described after saying that the parties needed to take hold of the Pleasantville PBOE. It was not error for the Government to refer to this evidence. Although not the subject of this post-trial motion practice, Count Four charged Defendant with attempting to “take hold of’ the PBOE by helping to find a new member of the school board, James McCormick, who would vote for corrupt contracts. Thus, this evidence of Defendant speaking about Pleasantville and PBOE comtption was admissible to show that Defendant was aware of and intentionally participated in the scheme to take hold of the Pleas-antville PBOE by appointing a new corrupt member.
(A. 26-27, emphasis added, some alterations in original.) We think it highly unlikely that Mister’s statement about the need to “take hold of Pleasantville,” which was properly admitted for the reasons identified by the District Court, caused the jury to convict Mister for any crimes other than those charged. The District Court clearly instructed the jury that the corruption at issue in Counts Two and Three was corruption of the PBOE.2 In general, we presume that the jury follows its instructions, United States v. Syme, 276 F.3d 131, 155 (3d Cir.2002), and we see no reason to abandon that presumption here. See also Daraio, 445 F.3d at 260 (concluding that although the government presented extensive evidence of defendant’s uncharged wrongdoing, “the district court’s instructions ensured that the jury would convict [the defendant], if at all, for a crime based on conduct charged in the indictment”).
In sum, we find no “substantial likelihood” that the jury convicted Mister on a corruption-of-city-eouncil theory, as opposed to a corruption-of-PBOE theory. See Daraio, 445 F.3d at 260. Thus, we find no error, let alone error that was “plain.” Olano, 507 U.S. at 732, 113 S.Ct. 1770. We will deny Mister’s request for a new trial on this basis.
III.
Finally, Mister claims that he was denied due process because the government encouraged the jury to convict him based on his association with criminals. He argues that the government’s closing argument improperly relied upon his friendship with corrupt Pleasantville politicians such as Adams and Callaway, and overemphasized the fact that both of those men had admitted to accepting bribes. In the same vein, Mister also objects to the prosecutor’s statement that “swans don’t swim in cesspools” in reference to Mister and the corruption that occurred in Pleas-antville in 2006.
Because Mister did not raise his guilt-by-association claim in the District Court, we again review for plain error. Olano, 507 U.S. at 731-32, 113 S.Ct. 1770 (1993). “We may reverse only if we find error in *178the prosecutor’s comments so serious as to undermine the fundamental fairness of the trial and contribute to a miscarriage of justice.” United States v. Walker, 155 F.3d 180, 188 (3d Cir.1998). After carefully reviewing the government’s arguments, we conclude that this high standard is not met here. We find no insinuations of guilt by association that would have undermined the fundamental fairness of Mister’s trial. Even if the prosecutor’s references to Mister’s association with Callaway, Adams, and McCormick created some risk of prejudice, the District Court unambiguously instructed the jury as follows:
[Y]ou must not consider the fact of a witnesses] guilty plea as any evidence of Louis Mister’s guilt. Their decisions to plead guilty were personal decisions about their own guilt. Such evidence is offered only to allow you to assess the credibility of the witness; to eliminate any concern that the Defendant has been singled out for prosecution; and to explain how the witness came to possess detailed firsthand knowledge of the events about which he testified. You may consider a witness’ [s] guilty plea only for these purposes.
(A. 941-42.) “These instructions sufficed to cure any possibility of prejudice.” Zafiro v. United States, 506 U.S. 534, 541, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). See also id. at 540-41, 113 S.Ct. 933 (noting the presumption that jurors follow their instructions). Nor do we find the statement “swans don’t swim in cesspools” to be so fundamentally unfair and prejudicial as to contribute to a miscarriage of justice. Cf. United States v. Adams, 799 F.2d 665, 670 (11th Cir.1986) (rejecting claim that defendant was denied a fair trial by the prosecutor’s statement that “you don’t find a swan in the sewer,” in reference to the credibility of government witnesses).
IV.
We will affirm the judgment of conviction.
. The government argues that the inconsistency between the indictment and the trial evidence alleged by Mister amounted to a variance, not a constructive amendment. Because it does not affect our disposition of the case, we need not decide who is right. We assume without deciding that the error Mister alleges, if proven, would constitute a constructive amendment.
. The District Court instructed the jury:
Count Two alleges that on or about June 5, 2006, defendant Louis Mister aided and abetted an attempt to obstruct interstate commerce by extortion by obtaining money on behalf of Maurice Callaway, that was paid by another, with that person’s consent, in exchange for Callaway's official action and influence as specific opportunities arose in Callaway's capacity as a member of the PBOE.
(A. 1227, emphasis added). The Court's charge for Count Three was even more emphatic: "To sum up, to find the defendant guilty of the crime charged in Count Three, you must find ... that the defendant knowingly and willfully aided Maurice Callaway in knowingly, willfully and corruptly ... accepting, or agreeing to accept a thing of value; [and] that Maurice Callaway intended to be influenced with regard to the affairs of the Pleasantville Board of Education [.]” (A. 1243, emphasis added). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479299/ | OPINION
PER CURIAM.
Heping Zhong, proceeding pro se, petitions for review of a Board of Immigration Appeals (“BIA”) decision dismissing his appeal of an Immigration Judge’s (“IJ”) decision denying his applications for relief *183from removal. We will deny the petition for review.
Zhong is a native and citizen of China who lived in Fujian Province. Zhong entered the United States in 2006. The following year, Zhong applied for asylum and withholding of removal. The Immigration and Naturalization Service then issued a notice to appear charging that Zhong was subject to removal because he was present without having been admitted or paroled. Through counsel, Zhong conceded that he was removable as charged.
At his hearing, Zhong testified that he is married and has two children. He stated that, after the birth of his daughter in 1987, five family planning officials came to his house and forcibly took his wife in order to insert an IUD. Zhong’s wife reported for periodic check-ups. In 1990, Zhong hired a private doctor to remove the IUD. His wife became pregnant and went into hiding at her cousin’s home. Officials went to Zhong’s house looking for his wife and Zhong told them that she was visiting relatives and that he would have her report for a check-up when she returned. When Zhong’s wife failed to report, officials returned to the house and took their electronic appliances.
Zhong’s wife and infant son returned home in February 1991 to see Zhong’s father, who was very ill. His father passed away the next morning. Zhong testified that, on the same day that his father died, five officials forcibly took his wife away to be sterilized because they had violated the family planning policy by having a second child. Zhong stated that he argued with officials and tried to stop them from taking his wife. As a result, two men restrained him by pressing his head on the ground. Zhong’s nose bled and another person hit and kicked him, resulting in bruises. Zhong stated that officials learned about his wife’s return because he lived in a small village and everyone knew about his father’s death. Zhong further stated that he was assessed a fine, which he paid. Zhong left China in 2006, fifteen years after these events. Zhong stated that he will be arrested if he returns to China because he departed illegally with the help of smugglers.
The IJ ruled that, under Matter of J-S-24 I. & N. Dec. 520 (A.G.2008), Zhong was not eligible for asylum based on his wife’s sterilization. In considering whether Zhong was eligible for relief based on his own opposition to China’s family planning policies, the IJ found Zhong not credible because he omitted from his original asylum application and statement his testimony that officials had harmed him.1 The IJ further opined, that, even if Zhong did tell his former attorney about his resistance and resulting harm, he did not establish past persecution as a matter of law because his harm did not rise to the level of persecution. The IJ also concluded that Zhong did not establish a well-founded fear of persecution, noting that there was no evidence that he was in danger of sterilization and that the country report did not support such a fear based on his illegal *184departure. Finally, the IJ found no evidence supporting a claim under the Convention Against Torture (“CAT”).2
The BIA dismissed Zhong’s appeal. The BIA did not address the IJ’s adverse credibility determination but agreed with the IJ that, even if Zhong were credible, he failed to satisfy his burden of proof for asylum or withholding of removal. The BIA rejected Zhong’s argument that the IJ did not consider his personal persecution, noting that the IJ discussed his claim at length. The BIA also rejected Zhong’s contention that asylum was warranted based on his illegal departure from China. The BIA explained that the record did not establish that any punishment that would be imposed would constitute persecution or torture as opposed to prosecution and legitimate punishment. The BIA also affirmed the IJ’s conclusion that Zhong had not shown that he is eligible for CAT protection.
We review the decision of the BIA where, as here, the BIA did not adopt the IJ’s decision or defer to the IJ’s findings. Voci v. Gonzales, 409 F.3d 607, 612 (Bd Cir.2005). We review the BIA’s findings under a substantial evidence standard, which requires that we uphold the BIA’s findings unless the evidence compels a contrary conclusion. Shardar v. Ashcroft, 382 F.3d 318, 323 (3d Cir.2004).
Zhong argues in his brief that he was persecuted based on his own opposition to China’s family planning policies. He asserts that he refused to tell the government his wife’s whereabouts, resulting in the confiscation of their electronic appliances. He also states that he tried to stop officials from taking his wife to be sterilized and officials beat and injured him. We agree with the BIA and the IJ that the harm that Zhong suffered did not rise to the level of persecution. See Fatin v. I.N.S., 12 F.3d 1233, 1240 (3d Cir.1993) (noting persecution does not encompass all treatment our society regards as unlawful or unconstitutional, but includes threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom).
Zhong further argues that the BIA failed to consider that the economic punishment the government imposed on him may amount to persecution. We disagree. The BIA stated in its decision that the fine and destruction of his property did not rise to the level of persecution. Zhong has not shown that the evidence compels a contrary conclusion. Zhong did not submit evidence at his hearing to support a claim of economic persecution. Although Zhong states in his brief that his wife used a sewing machine confiscated by officials to make a daily living, Zhong did not testify to this fact or submit any other evidence in this regard. Zhong inconsistently stated in his brief to the BIA- that he “was the only person to make money at [his] home.” A.R. at 7. Similarly, there is no evidence supporting Zhong’s statement in his brief that the fine imposed by Chinese officials equaled his family’s five-year annual gross income. Zhong also stated in his brief to the BIA that the fine constituted his annual total income.
Zhong also argues that he should be considered a refugee for purposes of asylum based on his wife’s forced sterilization because in China both a husband and wife have joint responsibility to comply with family planning policies. He argues that any punishment is joint punishment. The authority construing the definition of a refugee, however, is to the contrary. See Lin-Zheng v. Attorney General, 557 F.3d 147, 156-57 (3d Cir.2009) (en banc) (hold*185ing Congress did not intend “to extend refugee status to anyone other than the individual who has either been forced to submit to an involuntary abortion or sterilization, has been persecuted for failure or refusal to undergo such a procedure, or has a well-founded fear of that occurring in the future”).
Zheng’s remaining contentions warrant little discussion. He asserts that the IJ’s adverse credibility finding is not supported by the record, but the BIA did not address that finding. The BIA concluded that, even if credible, Zhong did not satisfy his burden of proof. Zhong also asserts that the BIA did not discuss whether he has a well-founded fear of persecution based on his opposition to the family planning policies. Zhong, however, did not raise an argument in his brief to the BIA that he had such a fear.
Accordingly, we will deny the petition for review.
. The IJ explained that, while it credited Zhong’s testimony about his wife's sterilization, it did not credit his testimony about his harm, which he had submitted to show persecution based on his ‘‘other resistance” to family planning policies. See 8 U.S.C. § 1101 (a)(42) (defining refugee for asylum purposes). The IJ noted that Zhong's asylum application was filed in 2007, when the definition of refugee included "other resistance” to family planning policies, and there was no reason not to include the harm he suffered. The IJ also noted that the application specifically asked whether Zhong had suffered any harm. Although Zhong blamed his former attorney for the omission, the IJ noted that Zhong had not claimed ineffective assistance of counsel nor had he submitted any evidence showing that he had told his former attorney about his harm.
. It is unclear whether Zhong sought protection under the CAT. Zhong's asylum application indicates that he was seeking CAT protection, but his former attorney represented that he was only seeking asylum and withholding of removal. A.R. at 79-80. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479301/ | OPINION OF THE COURT
TASHIMA, Circuit Judge.
Appellants Jennifer Lincoln (“Lincoln”), Daniel Zimmerman, and Gregory Zimmerman appeal the District Court’s grant of summary judgment in favor of Appellees Detective Leo Hanshaw, Detective Arthur Erie, Superintendent Michael Chitwood, and Upper Darby Township. We have jurisdiction under 28 U.S.C. § 1291, and we will affirm.
I. Factual and Procedural Background
On the night of April 10, 2009, the Dollar Den store in Secane, Pennsylvania, was burglarized. (A-1052) A case of lottery scratch-off tickets was stolen. (A-1052) Lincoln, the owner of the Dollar Den, provided a list of former employees and lottery serial numbers to Detective Hanshaw and other officers who responded to the burglary report to assist them in their investigation. (A-1052) A surveillance video of former employee Barry Mapp (“Mapp”) cashing in stolen lottery tickets on the night of the burglary led to his identification as the suspect. (A-1053)
Detective Hanshaw prepared a warrant for Mapp’s arrest on April 26, 2006. (A-1053) That morning, Detectives Hanshaw and Erie, accompanied by Officer Robert Bales, attempted to serve the arrest warrant at Mapp’s residence. (Blue 9) Although Mapp was not home, the detectives spoke to his mother and advised her that Mapp should turn himself in as soon as possible. (Blue 9) Later that day, Mapp decided to surrender and Officer Bales returned to Mapp’s home to arrest him and transport him to police headquarters. (Blue 9) Officer Bales testified that while in the back of his police car, Mapp repeatedly complained, “This is Bullshit. I shouldn’t be arrested for this. I had a deal with the bitch and I let her cut my face so that she wouldn’t send me to jail.” (A-147)
Once at police headquarters, Mapp was interviewed by Detectives Hanshaw and Erie. Mapp gave a written statement in *187which he admitted to having burglarized the Dollar Den on April 10, 2006. He also admitted to attempting to re-burglarize the Dollar Den on April 16, 2006, Easter Day. He claimed that upon entering the Dollar Den, he was jumped by the store owner’s boyfriend and his brother. (A-1043) Mapp said that the men waited for Lincoln to arrive at the store. When Lincoln arrived at the store, she made a deal with Mapp that if he allowed her to cut his face with a box cutter, she would not press charges for the burglary of the lottery tickets. (A 1043) She then allegedly sliced him and let him go.
Mapp had in fact been picked up by an ambulance bleeding from a cut on his face outside of his apartment building on April 16, 2006. He told the Ridley Township Police, who responded to reports of a stabbing victim outside of the apartment complex, that he had been injured as part of a drug deal gone bad. (A 905-08) When later accusing Lincoln of inflicting the wound, Mapp claimed to have lied to the police on the night of his injury in order to uphold his end of the bargain with Lincoln. (A 1044)
After Mapp had made his accusations against Lincoln to the Upper Darby Police, Detective Hanshaw asked her to come to the station for further discussions of the first burglary. (A383-83) At this interview, Detective Hanshaw confronted Lincoln with Mapp’s accusations against her. Lincoln was accompanied to the police headquarters by her boyfriend, Daniel Zimmerman, who did not participate in the interview and sat in the waiting area.
At this time, Detective Hanshaw recognized Lincoln’s boyfriend as the same Daniel Zimmerman who was the father of his wife’s daughter. (A 405) Detective Han-shaw then notified his supervisor that he had a potential conflict of interest in the case, which was reassigned to Detective Erie. (A406) Detective Hanshaw, although no longer in charge of the investigation into Lincoln and the Zimmermans, continued to work on it.
On October 5, 2006, Detective Erie, with Detective Hanshaw present, interviewed Mapp again about the alleged slashing incident. (A 249-50) Mapp provided a second written statement about the incident. (A 249) He then identified Lincoln and Daniel Zimmerman from photographic lineups as two of the people who had assaulted him. (A268-69) On October 12, 2006, Detective Erie Filed affidavits of probable cause in support of thirteen criminal charges against Lincoln and Daniel Zimmerman. (A 889, 895) A judge approved the arrest warrants and Lincoln and Zimmerman were arrested shortly thereafter.
On October 26, 2006, the Upper Darby Police Department received a phone tip from Diane Murphy claiming that Gregory Zimmerman’s wife had told her that he had admitted to being the third participant in the Mapp assault. (A 277) Based on this information, Detective Erie requested that Detective Hanshaw prepare a third photo array with Gregory Zimmerman in it. (A 282) Detective Hanshaw then interviewed Mapp and presented him with the photographs. Mapp identified Gregory Zimmerman as the third person who had assaulted him. On October 28, 2006, Detective Erie filed an affidavit of probable cause in support of thirteen criminal charges against Gregory Zimmerman. (A 899) A magistrate approved an arrest warrant. Several weeks later, Gregory Zimmerman was arrested.
In July of 2007, a jury acquitted Lincoln and the Zimmermans of all charges. (Al030-40)
Plaintiffs Lincoln and the Zimmermans now bring suit under 42 U.S.C. § 1983 for *188violations of their civil rights. They accuse Detectives Hanshaw and Erie, as well as Upper Darby Township Superintendent of Police Michael Chitwood, of false arrest, malicious prosecution, and abuse of process in violation of plaintiffs’ Fourth and Fourteenth Amendment rights. They also allege that Detectives Hanshaw and Erie conducted an investigation so unreasonable and tainted by conflicts of interest that it violated their substantive due process rights. They further accuse all defendants of a conspiracy to violate their civil rights. Plaintiffs also allege that Superintendent Chitwood made statements to the media in violation of their Sixth and Fourteenth amendment rights.
In addition, plaintiffs sued Upper Darby Township, claiming that its lack of a policy or practice for adequately handling conflicts of interest between investigating officers and criminal suspects was responsible for violations of their civil rights under Monell.1 Finally, they allege state law claims for false arrest, malicious prosecution, and false light invasion of privacy. (A 68-72)
The District Court granted summary judgment to defendants on all counts.
II. Standard of Review
Our review of a grant of summary judgment is plenary. Lexington Ins. Co. v. W. Pa. Hosp., 423 F.3d 318, 322 n. 2 (3d Cir.2005). “Summary judgment is appropriate only where, drawing all inferences in favor of the nonmoving party, ‘there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” Id. (quoting Fed. R. Civ. PROC. 56(c)).
Defendants, Detectives Hanshaw and Erie, as well as Superintendent Chitwood, have pled qualified immunity. (A94) “The determination of immunity is a question of law,” which is reviewed de novo by this Court. Id. Qualified immunity shields government officers performing discretionary functions from suits seeking federal civil damages “as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.” Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). An officer is entitled to qualified immunity if, “[tjaken in the light most favorable to the party asserting the injury, [ ] the* facts alleged do [not] show the officer’s conduct violated a constitutional right,” or if the right violated was not clearly established at time of the violation. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). This court may “exercise [its] sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, — U.S.-, -, 129 S.Ct. 808, 818,172 L.Ed.2d 565 (2009).
III. Analysis
The District Court held that plaintiffs had not adduced sufficient facts to establish a prima facie case of malicious prosecution or false arrest under federal or state law. (A19-32) In order to prevail on these claims, plaintiffs must demonstrate that the criminal proceedings against them were initiated without probable cause or, under Wilson v. Russo, 212 F.3d 781 (3d Cir.2000), “that [defendants] recklessly disregarded the truth in their warrant application and that a warrant application based on what [defendants] should have told the judge would have lacked probable cause.” Id. 786; see Sands v. McCormick, 502 F.3d 263, 266 *189(3d Cir.2007). Plaintiffs have done neither.
The District Court concluded, and we agree, that the warrant applications establish probable cause on their face. Plaintiffs do not appear to challenge this ruling on appeal. The arrest warrant applications recount the statements of Mapp, the alleged victim of and eyewitness to the crime, that he was in fact assaulted by Lincoln and the Zimmermans, and identified them as his attackers. (A 891-902) The detectives’ reasonable belief that an offense had been committed was buttressed by the fact that Mapp had, in fact, been treated for lacerations to the face on the date he said he was attacked, a fact that was included in the arrest warrant applications. Because there is no evidence that Mapp fabricated his story, a reasonable jury could not find that the detectives lacked probable cause to arrest Lincoln and the Zimmermans.
Plaintiffs argue that they can still prevail because the detectives “knowingly and deliberately, or with reckless disregard for the truth, made false statements or omissions that create a falsehood in applying for a warrant” and “such statements or omissions are material, or necessary, to the finding of probable cause.” Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir.1997). Plaintiffs contend that the detectives made six such omissions from their applications for the arrest warrants. First, they argue that the detectives should have disclosed the fact that Detective Hanshaw was raising a daughter fathered by Daniel Zimmerman for whom Daniel had failed to pay child support. Plaintiffs argue that this relationship created a conflict of interest and a potential motivation for Detective Hanshaw to harbor animus against Daniel Zimmerman, his girlfriend Lincoln, and his brother. (Blue 34) Second, they contend that the detec-fives should have disclosed a witness statement given to the Ridley Township Police on the night Mapp was hospitalized that he had heard a fight “outside” of the Dollar Den as opposed to within it, where Mapp later claimed he was assaulted. (Blue 35). Third, they contend that the detectives should have included the inconsistent physical descriptions of the assailant later believed to be Gregory Zimmerman given by Mapp during the investigation. (Blue 38) Fourth, they believe that the application should have included the fact that police suspected Gregory Zimmerman to be the third assailant and his photograph was included in the line-up shown to Mapp because of a hearsay tip over the telephone from Diane Murphy. Fifth, plaintiffs argue that the warrant applications should have included the fact that Mapp had an opportunity to fabricate his allegations against Lincoln and the Zimmermans during the hours when the detectives first attempted to arrest him and instead spoke to his mother at his home, and when he surrendered himself to police. Sixth, plaintiffs argue that the affidavit should have discussed the lack of a forensic investigation into the alleged crime.
In order to succeed on this theory, the plaintiffs must demonstrate that if the facts they complain were improperly omitted from the applications for the arrest warrants had been included in them, the affidavits would not have established probable cause. See Wilson, 212 F.3d at 789. This the plaintiffs cannot do. As discussed above, the warrant applications establish probable cause on their face. Even assuming arguendo that Detective Erie acted with reckless indifference for the truth in omitting the facts plaintiffs cite, had he included all six, their presence would not have defeated a finding of probable cause. Plaintiffs have therefore failed as a matter of law to come forward with a prima facie *190case of false arrest and malicious prosecution.
Plaintiffs further contend that the investigation leading to the detectives’ determination that probable cause existed was so inadequate as to violate their substantive due process rights under the Fourteenth Amendment. As shown above, however, probable cause was established as a matter of law at the time that Mapp, as a complaining victim who had suffered an injury, made the allegations against Lincoln and the Zimmermans and correctly identified them. At that time, “the facts and circumstances within [Detective Erie’s] knowledge [were] sufficient in themselves to warrant a reasonable person to believe that an offense has been ... committed by the persons to be arrested.” Orsatti v. N.J. State Police, 71 F.3d 480, 483 (3d Cir.1995). The officers had no further constitutional duty to continue their investigation in an attempt to unearth potentially exculpatory evidence undermining the probable cause determination. See Baker v. McCollan, 443 U.S. 137, 145-46, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). The Fourteenth Amendment imposed no obligation on officers to uncover further evidence once probable cause has been established at the time of Lincoln’s and the Zimmermans’ arrests. Id. Thus, plaintiffs have not shown that a constitutional violation occurred, much less that the right assertedly violated was clearly established, sufficient to defeat qualified immunity. The District Court correctly granted summary judgment to defendants on this claim.
As plaintiffs have failed to establish that any of Upper Darby Township’s officers violated plaintiffs’ civil rights, their Monell claim also must fail. See Williams v. Borough of West Chester, 891 F.2d 458, 467 (3d Cir.1989).
Finally, plaintiffs failed to introduce even a scintilla of evidence that a conspiracy existed between Detectives Hanshaw and Erie to violate their civil rights. Plaintiffs, as the nonmoving party, are entitled to have all reasonable inferences drawn in their favor at the summary judgement stage. In the absence of any evidence that there was a meeting of the minds to achieve the alleged conspiracy’s objectives, however, they are not entitled to an inference that their bare allegations create an issue of material fact for trial.
For the above-stated reasons, the judgment of the District Court will be AFFIRMED.
. Monell v. Dep't of Soc. Serv., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479303/ | OPINION OF THE COURT
FISHER, Circuit Judge.
Shenez Lawrence and Kreig Prosper appeal their respective convictions and sentences for one count of conspiracy to commit bank robbery in violation of 18 U.S.C. § 1951, three substantive counts of bank robbery in violation of 18 U.S.C. § 2113(a), and three counts of using or carrying a firearm during and in relation to a bank robbery in violation of 18 U.S.C. § 924(c). We will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.1
Lawrence and Prosper, in conjunction with co-conspirator Darnell Turner, conducted three “takeover” bank robberies in 2005. The men fled the Sun National Bank in Matawan, New Jersey on January 12, 2005, with $239,194; the Sun National Bank in Holmdel, New Jersey on August 9, 2005, with $37,000; and the Sovereign Bank in Woodbridge, New Jersey on December 9, 2005, with $27,893.50. In each instance, the three men followed a substantially similar modus operandi.
In'the first two robberies, Lawrence and Prosper entered the banks while armed, threatened the tellers and customers, and acquired cash. Turner served as the getaway vehicle driver and remained outside the bank watching for law enforcement. Lawrence and Prosper donned essentially the same outfits for both robberies, choosing to wear ski masks, gloves, and goggles. In the third robbery, Lawrence, due to injuries suffered from a gunshot wound, acted as the getaway driver while Turner and Prosper entered the bank to conduct the robbery.
Following the third robbery, police officer Steve Killane responded to reports of gun fire at Lawrence’s home. Lawrence was arrested, waived his Miranda rights, and was questioned by police. Upon searching Lawrence’s residence, police recovered, among other things, a significant amount of cash and coins as well as several empty money wrappers. Aware of the bank robbery on that day, the officers contacted the Federal Bureau of Investigation. In the meantime, Turner arrived at Lawrence’s residence and police transported both men to the police station for questioning.
Upon questioning by authorities, Lawrence confessed and proceeded to discuss each robbery in detail. Turner also confessed to his participation in all three robberies; he identified Lawrence and Prosper as his co-conspirators and discussed each robbery in detail.
Following these confessions, authorities began surveillance of Prosper, who had gone on a spending spree following the first robbery, spending thousands of dollars on vehicles, jewelry, and a trip to Atlantic City. Upon searching Prosper’s vehicle, authorities found tens of thousands of dollars and the .38 caliber handgun that Turner carried during the third robbery. *194Subsequent searches of each suspect’s residence revealed additional currency, money wrappers, and other tools used during the robberies including goggles, ski masks, and gloves.
The grand jury returned a superseding nine-count indictment against Lawrence and Prosper. A jury subsequently convicted Lawrence and Prosper on seven counts: one count of conspiracy to commit bank robbery, three substantive counts of bank robbery, and three counts of using or carrying a firearm during and in relation to a bank robbery.
The District Court denied post-trial motions for judgments of acquittal and for new trials. The Court sentenced Lawrence to 824 months in prison and ordered him to pay $304,087.50 in restitution. The Court sentenced Prosper to 794 months in prison and ordered him to pay $304,087.50 in restitution. Lawrence and Prosper filed them timely notices of appeal on February 28, 2008.
II. Alleged Trial Errors
Both Lawrence and Prosper argue that various errors were made by the District Court during trial. This section will address the errors alleged by each Appellant in turn.
A. Admissibility of Evidence: Lawrence
Lawrence challenges the District Court’s admission of five separate pieces of evidence. Here, we review the first four challenges, properly preserved at trial, under an abuse of discretion standard. Gov’t of the Virgin Islands v. Albert, 241 F.3d 344, 347 (3d Cir.2001). The fifth evidentia-ry challenge, raised for the first time on appeal, is reviewed for plain error only.2
Lawrence contends that the District Court erred in admitting evidence (1) that he was shot in the head on October 3, 2005, prior to the Woodbridge robbery; (2) of the .380 caliber semi-automatic handgun recovered from his residence on October 3, 2005; (3) of the fact that he suffered five gunshot wounds to the torso on July 25, 2005, prior to the Holmdel robbery; and (4) of the .38 caliber handgun recovered from his residence in May of 2006. Lawrence asserts that all of this evidence “in-flam[ed] the emotions of the jury and ... depict[ed][him] as someone who had a general propensity for gun violence and criminality.” (App. Lawrence Br. at 9.) We disagree.
Per Rule 404(b) of the Federal Rules of Evidence, “[ejvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” Fed. R.Evid. 404(b). Lawrence asserts that each of the four admitted pieces of evidence constitutes “other crimes” for purposes of Rule 404(b). This assertion is unpersuasive. We have held that “Rule 404(b) does not apply to evidence of uncharged offenses committed by a defendant when those acts are intrinsic to the proof of the charged offense.” United States v. Gibbs, 190 F.3d 188, 217 (3d Cir.1999). Notably, even in instances where the intrinsic act is extremely prejudicial to the defendant, “the court would have no discretion to exclude it because it is proof of the ultimate issue of the case.” Id.
The evidence asserted here is intrinsic to the proof of the three bank robberies and thus admissible. First, the fact *195that Lawrence suffered a gunshot wound to the head on October 3, 2005, provided the jury with an explanation as to why he assumed a different role in the Wood-bridge robbery and corroborated Turner’s testimony stating as much.
Second, investigators recovered a .380 caliber semi-automatic handgun from Lawrence’s possession on October 3, 2005, which matched descriptions provided by eyewitnesses to the Holmdel robbery and also coiToborated Turner’s testimony.
Third, evidence that Lawrence suffered five gunshot wounds to the chest weeks prior to the Holmdel robbery on July 23, 2005, corroborated Turner’s explanation as to why Lawrence dressed differently for the Holmdel robbery and enabled jurors to more easily identify Lawrence in video footage.
Fourth, Turner testified that Lawrence took possession of the gun used by Prosper in the commission of the Woodbridge robbery. The introduction of the .380 caliber handgun recovered from Lawrence’s residence corroborated this testimony.
For these reasons, the intrinsic nature of the four pieces of aforementioned evidence justified their proper admission at trial. The District Court did not abuse its discretion in this regard.
Fifth, for the first time on appeal, Lawrence argues that the District Court erred in admitting testimony that police responded to his residence after receiving reports of gun fire. Prior to trial, the parties stipulated to a statement that police responded to Lawrence’s residence “on a report of a gunshot being fired.” Detective Killane’s testimony during trial was consistent with this stipulation and elicited no objection from Lawrence.
Lawrence now contends that the admission of this stipulated statement is extremely prejudicial, representing an effort by the Government to inflame the emotions of the jury and depict him as someone who has a general propensity for gun violence. We disagree. The police response to a report of shots fired initiated the discovery of the Woodbridge robbery money. Detective Killane’s testimony carried substantial probative value in this instance as it provided the jury with an understanding of how the conspirators’ robbery scheme began to come undone. The probative value of the stipulated statement outweighed any prejudice to Lawrence and was properly admitted by the District Court.
B. Admissibility of Evidence: Prosper
Prosper argues that the District Court improperly admitted irrelevant and prejudicial testimony that characterized each bank robbery as violent and heinous. He specifically points to (1) F.B.I. Agent Gallagher’s testimony that “take-over robberies are the most serious type of bank robbery;” (2) Stacy Stone’s testimony that she terminated her employment at Mata-wan Bank because “we were robbed and I didn’t feel comfortable working there anymore;” and (3) Stope’s further testimony that she was pregnant at the time of the Matawan robbery.
Prosper contends that the testimony of Gallagher had little probative value and was intended to inflame the jury. Prosper objected to this testimony at trial and made no request for a mistrial. Thus we review the District Court’s decision not to grant a mistrial sua sponte for plain error. See United States v. Pungitore, 910 F.2d 1084, 1126 n. 58 (3d Cir.1990); Gov’t of the Virgin Islands v. Charleswell, 24 F.3d 571, 576-77 (3d Cir.1994). The objection to this testimony was in fact sustained and that line of questioning halted. The jurors viewed video tape of all three robberies and, therefore, were able to come to *196their own conclusions as to whether the robberies were “serious” in nature. We cannot say that Prosper suffered prejudice significant enough from Gallagher’s statement that the District Court erred in not declaring a mistrial sua sponte.
Prosper also argues that the District Court should have declared a mistrial sua sponte following Stone’s testimony. Prosper did not object to Stone’s testimony at trial, therefore we review the District Court’s decision for plain error. See Charleswell, 24 F.3d at 576-77. Stone’s testimony that she felt uncomfortable working in the bank following the robbery did not result in substantial prejudice to Prosper. Further, her testimony that she was pregnant at the time of the robbery was offered to corroborate Turner’s testimony that Lawrence and Prosper described a pregnant woman as being in the bank at the time of the robbery. As such, the District Court did not plainly err in failing to declare a mistrial sua sponte as a result of this relevant testimony.
C. Request for Mistrial: Lawrence
In response to an inquiry by the Government regarding Lawrence’s initial understanding of his Miranda rights prior to his December 9, 2005 arrest, Detective Killane testified to Lawrence’s “past run-ins with law enforcement.” (DAL at 81.) Upon Lawrence’s objection to the statement, the testimony was stricken from the record and a curative instruction issued. Lawrence subsequently moved for a mistrial on the basis that Killane’s statement and the prior admission of five pieces of disputed evidence constituted cumulative prosecuto-rial misconduct that effectively denied Lawrence a fair trial. The District Court denied the motion and noted that it was “satisfied that the potential prejudicial impact of the testimony ... while unfortunate, is simply unlikely to have any impact on the jury’s verdict in this case.” On appeal, Lawrence contends that the District Court erred in failing to grant a mistrial. We disagree.
In addition to Detective Killane’s testimony, Lawrence points to the five pieces of disputed evidence discussed in Section II.A as grounds for a mistrial. As we have already found these pieces of evidence were properly admitted, our focus here rests solely on the District Court’s decision to strike the disputed testimony and on the validity of the curative instruction in this regard.
We review denials of motions for mistrial for abuse of discretion. United States v. Rivas, 493 F.3d 131, 139 (3d Cir.2007). Notably, “such discretion is construed especially broadly in the context of Rule 403.” United States v. Mathis, 264 F.3d 321, 327 (3d Cir.2001). Here, Lawrence bears the burden of showing that the District Court’s decision to strike the testimony was insufficient to cure any error that may have occurred. United States v. Thornton, 1 F.3d 149, 156 (3d Cir.1993). It is generally presumed that a jury will follow a court’s instruction to disregard inadmissible evidence. See Greer v. Miller, 483 U.S. 756, 766, if. 8, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987).
In this case, it is unlikely that the jury proved unable to follow the District Court’s instructions. The District Court provided a simple and coherent instruction to jurors immediately following Killane’s utterance of the statement. Furthermore, we agree with the District Court that the statement’s inherent lack of specificity in regard to certain past crimes rendered the statement only minimally prejudicial. Consequently, we are satisfied that the District Court did not abuse its discretion in declining to grant a mistrial.
*197D. Unexplained Wealth
For the first time on appeal, Prosper asserts that the District Court erred by failing to provide the jury with a limiting instruction upon the introduction of evidence concerning his sudden acquisition and expenditure of unexplained wealth following the Matawan robbery. As with the previous unpreserved objections on appeal here, we review this contention for plain error. Lessner, 498 F.3d at 192. We conclude that the District Court did not err by failing to provide a limiting instruction regarding Prosper’s unexplained wealth.
We have stated that “the sudden unexplained acquisition of wealth by an impecunious person at or about the time of a theft which he had the opportunity to commit, is competent evidence of guilt and will support ... conviction.” United States v. Chaney, 446 F.2d 571, 575 (3d Cir.1971). In this case, Prosper spent thousands of dollars in the days and weeks following the first bank robbery. Prosper’s acquisition of wealth in the days following the first robbery appears great, especially given the fact that he reported annual income of $8,000 for tax purposes at this time.
Prosper’s characterization of his post-Matawan robbery spending spree as evidence of “other crimes” for purposes of Rule 404(b) is erroneous. The Government offered evidence of Prosper’s ability to make purchases in a way that was not possible for Prosper prior to the Matawan robbery, not evidence of a crime or crimes tending to show Prosper’s bad character or propensity to commit a crime. There exists a great imbalance between the amount of money spent subsequent to the Mata-wan robbery and Prosper’s reported annual income. This imbalance is certainly probative.
III. Alleged Sentencing Errors
Lawrence and Prosper challenge the reasonableness of the sentences imposed by the District Court on several grounds. We review these sentences under an abuse of discretion standard.3
At the outset, Lawrence maintains that the District Court abused its discretion by (1) failing to depart from the statutory minimum; and (2) finding that Lawrence and Turner were not similarly situated offenders for purposes of 18 U.S.C. § 3553(a).4 We disagree.
A district court does not have the authority to depart from statutorily mandated minimum sentences in the absence of (1) a government motion for reduction based upon a defendant’s substantial assistance or (2) a defendant’s compliance with the safety valve in § 3553(f). United States v. Kellum, 356 F.3d 285, 289 (3d Cir.2004). Here, the Government did not move for a departure based on substantial assistance, and the nature of the Lawrence’s § 924(c) conviction for possession of a firearm during and in relation to a robbery prohibits consideration of the *198safety valve factors. Therefore, the District Court did not abuse its discretion in refusing to depart from the statutorily mandated minimum sentence.
Contrary to Lawrence’s second contention, we have held that the “disparity of sentence between co-defendants does not of itself show abuse of discretion.” United States v. Parker, 462 F.3d 273, 276-77 (3d Cir.2006). The District Court considered Lawrence’s contention that he and Turner were similarly situated for purposes of § 3553(a) and rightfully rejected it. Significant differences between Lawrence and Turner justify the 728-month disparity in their sentences. Most obviously, Turner pleaded guilty to a single count of using or carrying a firearm during and in relation to a bank robbery in violation of 18 U.S.C. § 924(c), a charge which carries a seven-year mandatory minimum consecutive sentence. In contrast, Lawrence pleaded not guilty and was convicted of, among other things, three counts under § 924(c) which, in turn, carry a 57-year mandatory minimum consecutive sentence. Also, Turner pleaded guilty to the charges against him, faced fewer counts of conviction, and cooperated significantly with law enforcement. Given these circumstances, the District Court correctly concluded that Turner and Lawrence were not similarly situated co-defendants for purposes of § 3553(a) application.
Lawrence also contends that the conditions of his pre-trial confinement in Passaic County Jail justified a downward variance in sentencing rather than an imposition of the minimum sentence under the Guidelines. He asserts that the District Court’s failure to grant a downward variance constitutes an abuse of discretion. We disagree and are satisfied, like the District Court, that the conditions in the Passaic County Jail do not warrant an Eighth Amendment or substantive due process inquiry.
Prosper contends that the District Court abused its discretion by imposing a disproportionate sentence without consideration for his insubstantial criminal history and the fact that no injuries stemmed from the robberies. We disagree.
We have held that “although the proportionality principle [of the Eighth Amendment] applies to sentences of terms of years, only an extraordinary case will result in a constitutional violation.” United States v. Walker, 473 F.3d 71, 79 (3d Cir.2007). Contrary to Prosper’s claim, no such extraordinary case of gross dispro-portionality exists here. See id. at 82-83. Prosper’s sentence is not disproportionate from or unreasonable in the face of the gravity of the crimes. Prosper demonstrated a willingness to repeatedly engage in felonious behavior when he committed three consecutive armed robberies spread out over a period of several months. The District Court could reasonably conclude that the crimes Prosper committed were “momentous enough to warrant the deterrence and retribution of lengthy consecutive sentences.” Id.
IV.
For the foregoing reasons, we will affirm the District Court’s judgments.
. The District Court exercised subject matter jurisdiction pursuant to 18 U.S.C. § 3231. This Court has jurisdiction over these consolidated appeals pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
. We review alleged errors without contemporaneous objection for plain error. United States v. Lessner, 498 F.3d 185, 192 (3d Cir. 2007). Plain error occurs when (1) an error is committed; (2) that error is plain; and (3) it affected the defendant's substantial rights. Id.
. We review a sentence by first ensuring that the sentencing court did not commit a serious procedural error. Unites States v. Lopez-Reyes, 589 F.3d 667, 670 (3d Cir.2009). Upon reviewing the procedural validity of a sentence, we next "review the substantive reasonableness of the sentence under an abuse of discretion standard, while keeping in mind that as long as a sentence falls within the broad range of possible sentences that can be considered reasonable in light of the [18 U.S.C.] § 3553(a) factors, we must affirm.” Id. (internal quotations omitted).
. Appellant Lawrence's brief argues that the District Court failed to "deviate” from the mandated minimum sentence. (App. Lawrence Br. at 33.) The use of the term “deviate” in relation to sentencing is inaccurate. Rather, we will review the District Court's decision not to "depart” or "vary” from the statutory minimum. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479305/ | OPINION
PER CURIAM.
Appellant Amin Rashid was found guilty following a jury trial of 55 counts of mail fraud, wire fraud, and money laundering, and one count of criminal forfeiture in connection with a scheme to defraud commercial loan applicants. Despite receiving advance fees in the amount of $1,696,470, Rashid defrauded 47 customers and made no legitimate loans. In May of 1994, Rashid was sentenced to a term of imprisonment of 168 months and three years of supervised release, a $15,000 fine, a $2,700 special assessment, and he was ordered to pay restitution in the amount of $1,696,470. The District Court ordered the residential property located at 444 East Mount Pleasant Avenue forfeited. We affirmed the *200judgment of conviction and sentence on August 4,1995 in United States v. Rashid, CA. No. 93-2241, 66 F.3d 314 (3d Cir. 1995).
Following his unsuccessful direct appeal, Rashid filed numerous challenges to his conviction and sentence under 28 U.S.C. § 2255, Federal Rule of Civil Procedure 60(b), Federal Rule of Criminal Procedure 33, and other statutes and rules. Amin and Joyce Rashid also challenged the forfeiture order several times unsuccessfully. Rashid filed for bankruptcy, and we held the restitution obligation to be dischargea-ble. In re: Rashid, 210 F.3d 201 (3d Cir. 2000). The obligation has since been discharged. Rashid was released from prison and began serving his term of supervised release on September 2, 2005. See Docket Entry No. 460. For the next several years, there were no further challenges to the 1993 conviction.
On August 21, 2008, and while he was still serving his term of supervised release, a federal grand jury returned an indictment charging Rashid with two counts of mail fraud in violation of 18 U.S.C. § 1341, and one count of aggravated identity theft in violation of 18 U.S.C. § 1028A. See United States v. Rashid, D.C.Crim. No. 08-cr-00493. A warrant for his arrest was issued on the new charges, and the Probation Office petitioned to revoke Rashid’s 1994 term of supervised release for violating the conditions of supervised release. See Docket Entry No. 460. A hearing on that petition has been continued until after the completion of the trial on the 2008 criminal charges. See Docket Entry No. 467.
In October of 2008, Rashid’s 1993 criminal case was reassigned to a different United States District Judge following the resignation from the federal bench of the original trial judge. On December 3, 2008, Rashid filed a motion for a new trial in his 1993 criminal case pursuant to Federal Rule of Criminal Procedure 25(b)(2)(B).1 In it, among other things, he alleged that the trial judge improperly directed a verdict in favor of the government by instructing the jury that the government “has held the burden of proving beyond a reasonable doubt each essential element of what is alleged in the indictment.” Based on an amended trial transcript that was incorrect, the trial judge previously denied his Rule 60(b)(6) motion raising the same claim, but, once on supervised release, Rashid, according to his motion, obtained a copy of the official tape, had it transcribed on January 8, 2008, and now has proof that the amended official trial transcript was inaccurate.
The District Court ordered the government to respond to Rashid’s Rule 25(b) motion. The government submitted an answer, contending that Rashid’s motion for a new trial, because it alleged newly discovered evidence, would have to meet the requirements for a Rule 33 motion, and, under Rule 33 it was untimely. In the alternative, because there was overwhelming evidence of Rashid’s guilt, any error in the court’s instruction was harmless beyond a reasonable doubt. In an order entered on January 12, 2009, the District Court denied the motion for a new trial as untimely under Rule 33, because it was *201filed more than 15 years after the jury’s verdict. Rashid appeals.
We will affirm. We have jurisdiction under 28 U.S.C. § 1291 over final orders of the District Court. A district court’s denial of a motion for a new trial ordinarily is reviewed for an abuse of discretion, but legal issues raised by the motion are reviewed de novo. Cf. United States v. Jasin, 280 F.3d 355, 360 (3d Cir.2002). Rule 25(b) specifies the procedures that apply when a trial judge in a criminal case is unable to complete his or her remaining duties following a verdict or finding of guilt. See Gov’t of Virgin Islands v. Mills, 935 F.2d 591, 597 (3d Cir. 1991) (newly assigned district judges, requested to impose lengthy mandatory minimum sentences in cases tried before another judge, abused their discretion in granting new trials). Rashid’s motion for a new trial was based on newly discovered evidence and thus he must meet the requirements of some other rule or statute in order to proceed.
Under Rule 33, “[a]ny motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty.” Fed. R.Crim.P. 33(b)(1). The District Court properly concluded that Rashid’s motion for a new trial under Rule 33 was untimely by more than a decade. Furthermore, we agree with the government’s assertion that it did not waive the timeliness issue. Cf. Eberhart v. United States, 546 U.S. 12,126 S.Ct. 403, 163 L.Ed.2d 14 (2005) (per curiam) (seven-day time limit for filing motion for new trial grounded on reason other than newly discovered evidence is not jurisdictional and may be forfeited).
Because Rashid’s motion also could have been construed as an unauthorized successive section 2255 motion, we note that a successive section 2255 motion may proceed if certified by a court of appeals to contain “newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense.” 28 U.S.C. § 2255(h)(1). But we would not grant such authorization on the basis of Rashid’s motion for a new trial because, at a minimum, he did not make out a prima facie case that his evidence would be sufficient to establish that no reasonable factfinder would have found him guilty of the offense.
Last, the government has asked us in its brief on appeal to enjoin Rashid from filing any more challenges to his 1993 conviction, absent judicial permission, pursuant to our power to do so under the All Writs Act, 28 U.S.C. § 1651. See also Abdul-Akbar v. Watson, 901 F.2d 329 (3d Cir.1990). We will deny this request without prejudice. Although the government has made out an undeniable case that Rashid’s history of pro se challenges to his 1993 conviction is vexatious, see Appellee’s Brief, at 10-14, and we note with concern that he filed seven pro se motions in the district court between January and May of 2009, the government has not addressed an apparent mootness issue. Rashid has served his term of imprisonment and was very close to completing his three-year term of supervised release when the motion attacking the jury instruction was filed, see United States v. Jackson, 523 F.3d 234, 242 (3d Cir.2008); United States v. Cottman, 142 F.3d 160,165 (3d Cir.1998). The mootness issue might render the need for an injunction unnecessary. In addition, it has not persuaded us that the matter of enjoining Rashid, should it become necessary, is not best left to the newly assigned district judge.
We will affirm the order of the District Court dismissing Rashid’s motion for a new trial as untimely filed. Appellant’s *202motion for an order directing the government to file an appendix, or, in the alternative, to strike the government’s brief, is denied.
. Rule 25(b)(1) provides: "After a verdict or finding of guilty, any judge regularly sitting in or assigned to a court may complete the court's duties if the judge who presided at trial cannot perform those duties because of absence, death, sickness, or other disability." Fed.R.Crim.P. 25(b)(1). Rule 25 further provides that: "The successor judge may grant a new trial if satisfied that: (A) a judge other than the one who presided at the trial cannot perform the post-trial duties; or (B) a new trial is necessary for some other reason." Id. at (b)(2). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479307/ | OPINION
PER CURIAM.
Peter DiPietro, proceeding pro se, appeals an order of the United States District Court for the District of New Jersey dismissing his civil rights action. We will affirm the District Court’s order.
DiPietro alleged in his complaint that he and his wife, Joanna Vassallo, were divorced in 2001. The Superior Court of New Jersey, Chancery Division, Family Part, ordered DiPietro to pay child support through the New Jersey Family Support Payment Center (“FSPC”). DiPietro averred that he made child support payments by personal and/or business check for seven years. DiPietro stated that in 2008 he was notified that his checks would no longer be accepted due to a “dishonored check history” and that he must make future payments by money order, cashier’s check, certified check, or electronic payment. Compl. at 4. DiPietro alleged that he wrote a letter to the FSPC and disputed that any of his checks were returned. He complained that the new payment requirement imposed an undue hardship. DiPietro stated that he continued to make payments by personal and/or business check but the FSPC returned the checks to him.
In May 2008, the Superior Court of New Jersey, Probation Services Division for the Vicinage of Gloucester (“Probation Services”) notified DiPietro that he was in arrears and that his weekly payment plus a portion of his arrears would be withheld from his income unless he contested. DiPietro averred that Probation Services also notified him that a bench warrant for his arrest would be issued and that his driving privileges would be suspended. The New Jersey Motor Vehicles Commission sent DiPietro a notice confirming the suspension.
DiPietro filed his complaint against the FSPC, Probation Services, Vicinage Assistant Chief Probation Officer Susan Sasser, the New Jersey Motor Vehicle Commission, its Chief Administrator Sharon Harrington, Case Worker Christie Morgan-dale, and his ex-wife, Joanna Vassallo. DiPietro claimed that the defendants violated, among other things, his due process rights, his right to equal protection, the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p (“FDCPA”), and the New Jersey Constitution. He also brought state law claims for malicious prosecution, malicious abuse of process, and intentional and negligent infliction of emotional distress. DiPietro sought declaratory and injunctive relief and compensatory and punitive damages.
*204The District Court granted the defendants’ motions to dismiss the complaint, concluding that DiPietro failed to state a claim for relief against Vassallo and against any defendant under the FDCPA. The District Court also dismissed DiPie-tro’s constitutional and state law claims against the state defendants under the Younger1 abstention doctrine. This appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of an order granting a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is plenary. Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.1996).2 We also exercise plenary review over the question of whether the elements required for abstention exist. Marran v. Marran, 376 F.3d 143, 154 (3d Cir.2004). If the elements exist, we review the decision to abstain for abuse of discretion. Id.
We agree with the District Court that DiPietro fails to state a claim for relief against Vassallo. DiPietro has not alleged any facts supporting the conclusion that Vassallo, who is the recipient of the child support award, acted under color of state law. He thus fails to state a claim against her under 42 U.S.C. § 1983. See Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir.1993). DiPietro also fails to state a claim against Vassallo under the FDCPA because the FDCPA applies to debt collectors and Vassallo is not a debt collector as defined by the statute. Pollice v. Nat’l Tax Funding, L.P., 225 F.3d 379, 403 (3d Cir.2000).3 We also agree, for substantially the reasons stated by the District Court, that DiPietro fails to state a claim against Vassallo under the New Jersey Constitution, for malicious prosecution or abuse of process, and for intentional or negligent infliction of emotional distress.
As noted above, the District Court dismissed DiPietro’s constitutional and state law claims against the state defendants under the Younger abstention doctrine, which in certain circumstances requires a district court to abstain from exercising jurisdiction over a claim where its resolution would interfere with an ongoing state proceeding. Lazaridis v. Wehmer, 591 F.3d 666, 670 (3d Cir.2010). Abstention is appropriate only when: (1) there are ongoing state proceedings that are judicial in nature; (2) the state proceedings implicate important state interests; and (3) the state proceedings provide an adequate opportunity to raise the federal claims. Id. The District Court applied our decision in Anthony v. Council, 316 F.3d 412, 418 (3d Cir.2003), in which we held that abstention was proper where persons in New Jersey, who had been incarcerated for failing to comply with their child support orders, claimed violations of their due process rights. *205The District Court correctly found that the requirements for abstention are met here. First, DiPietro alleges in his complaint that there are ongoing proceedings in New Jersey state court. Compl. at 3. We also recognized in Anthony that New Jersey courts are charged with monitoring, enforcing, and modifying child support obligations throughout the duration of a child support order. Anthony, 316 F.3d at 419. Second, there is no question that state child support proceedings implicate important state interests. Id. at 421. Finally, DiPietro is able to raise his claims in state court and to appeal adverse decisions through the state appellate system and to the United States Supreme Court. Id. at 422. We also agree with the District Court that, although DiPietro contends that bias exists in the state system, he has not shown a legitimate extraordinary circumstance justifying federal intervention. Abstention was thus proper in this case. See also Lazaridis, 591 F.3d at 670-71 (holding abstention appropriate where plaintiff brought due process challenge to registration and enforcement of French custody order in Delaware state court).4
Accordingly, we will affirm the District Court’s order.5
. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).
. DiPietro argues in his brief that the standards for dismissal of a complaint under Rule 12(b)(6) violate the constitutional right to a jury trial. DiPietro did not raise his argument, which consists of reproduced portions of a law review article, in District Court. Because there are no exceptional circumstances justifying review, we will not entertain this argument. Bagot v. Ashcroft, 398 F.3d 252, 256 (3d Cir.2005).
.The District Court also correctly ruled that DiPietro fails to state a claim against the state defendants under the FDCPA. See Mabe v. G.C. Servs. Ltd. P’ship, 32 F.3d 86, 88 (4th Cir.1994) (holding child support obligations are not "debts” under FDCPA); Heredia v. Green, 667 F.2d 392, 394 (3d Cir.1981) (holding state officers and employees attempting to collect a debt in the performance of their official duties are not "debt collectors” for purposes of the FDCPA).
. Anthony involved claims for injunctive and declaratory relief. DiPietro does not argue in his brief that the District Court erred in dismissing his claims for compensatory and punitive damages and we have thus not considered this question. See F.D.I.C. v. Deglau, 207 F.3d 153, 169-70 (3d Cir.2000) (issue not raised in opening brief is waived).
. DiPietro's motion for leave to file a Rule 28(j) letter that exceeds the permissible word limit is granted. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479310/ | OPINION
PER CURIAM.
Petitioner, Dan Dong, seeks review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the following reasons, we will deny her petition.
Dong is a citizen of the People’s Republic of China from Fujian Province who has resided unlawfully in the United States since 2000. In March 2006, she married Ming Lin, and the couple had two children, Jason and Bobby Lin. When the Department of Homeland Security later initiated removal proceedings against her, Dong sought asylum and related relief on the ground that, if removed to China, she would be forcibly sterilized because she had violated China’s one-child family planning policy by giving birth to two children in this country.
Following a hearing, the Immigration Judge (“IJ”) denied relief, finding that Dong had failed to demonstrate that she had a well-founded fear of persecution under 8 U.S.C. § 1101(a)(42) because the evidence did not establish that her fear of being subjected to involuntary sterilization at home was objectively reasonable. See Guo v. Ashcroft, 386 F.3d 556, 563 (3d Cir.2004). In particular, the IJ concluded that Dong had failed to show either that she would be singled out for sterilization or that China has a pattern or practice of sterilizing women who return to the country with two foreign-born children. See 8 C.F.R. § 208.13(b)(2)(iii)(A). The IJ also denied Dong’s related applications for withholding of removal and relief under the Convention Against Torture.
Dong appealed to the BIA. In addition to seeking review of the IJ’s ruling, Dong also submitted hundreds of pages of documents to the BIA — most of which she had already submitted to the IJ — and requested in the alternative that the BIA remand the matter for the IJ to address the additional evidence. Upon review, the BIA adopted and affirmed the IJ’s decision, denied the request for a remand, and dismissed the appeal. Dong now petitions for review of the BIA’s order.1
A. Applications for Asylum and Withholding of Removal
Upon review, we conclude that substantial evidence supports the denial of Dong’s application for asylum. To establish eligibility for asylum on the ground that she had a well-founded fear of future persecution, Dong was required to demonstrate that: (1) her fear of persecution is genuine; and (2) “a reasonable person in [her] *209circumstances would fear persecution if returned to the country in question.” Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003). To satisfy the second, so-called “objective prong,” Dong had to show either that she would be individually “singled out” for persecution, or that there is a “pattern or practice” of persecution of similarly situated individuals. 8 C.F.R. § 208.13(b)(2)(iii)(A). The agency’s findings on these questions “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812,117 L.Ed.2d 38 (1992).
First, we agree with the IJ and BIA that Dong faded to establish that she would be singled out for persecution under 8 C.F.R. § 208.13(b)(2)(iii)(A), as the evidence presented did not show that she had ever come into contact with family planning authorities in the past, or that her foreign-born children would necessarily “count” for purposes of China’s family planning policy in the future.2 Although Dong argues on appeal that a document issued by the State Department titled “Tips for Travelers to the People’s Republic of China” clearly demonstrates that the distinction between children born in the United States and those born in China is a “distinction without a difference,” (Br. 10) we disagree. This document states only that children born in the United States to Chinese citizens “are not recognized as U.S. citizens under Chinese nationality law;” it does not discuss how this policy may or may not relate to the nation’s family planning policies. (AR 001225.) Dong also argues that the IJ and BIA “ignored prior precedent” holding that children born in the United States are treated no differently than children born in China. (Br. 11.) Curiously, however, the only authority that Dong cites in support of this proposition is In re J-W-S-, 24 I & N Dec. 185 (BIA 2007), which held just the opposite.
We also agree with the IJ and BIA that the record evidence did not establish that the Chinese government engages in a pattern or practice of sterilizing individuals who return to Fujian Province after giving birth to two children in the United States. As the IJ noted, “[o]n balance, the evidence pointed to a marked decrease in enforcement of the family planning policy through forced abortion and/or sterilization and does not indicate that there is a pattern or practice of sterilizing individuals who return to China after having two children in the United States.” (AR 001226.) Dong now argues that, in reaching this conclusion, the IJ failed to give adequate weight to the following evidence: (1) a *2102005 report by the United Nations High Commission for Refugees; (2) a New York Times article regarding the persecution of an anti-family-planning advocate; and (3) various CNN.com and AsiaNews articles. We have reviewed these documents and cannot say that they compelled a ruling in Dong’s favor; simply stated, none of these documents establishes that Chinese citizens who return to Fujian Province after giving birth to two children in the United States will be forcibly sterilized.3
For these reasons, we conclude that substantial evidence supports the agency’s denial of Dong’s claim for asylum. Furthermore, because Dong failed to show that she has a reasonable fear of future persecution under the lower burden of proof required for asylum, the agency correctly concluded that she was necessarily ineligible for withholding of removal. See INS v. Cardoza-Fonseca, 480 U.S. 421, 430-32, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987).
B. Motion to Remand
Dong also argues that the BIA abused its discretion in denying her motion to remand.4 Because there is no express statutory authorization for a motion to remand, the BIA appropriately construed Dong’s request as a motion to reopen. See In re Coelho, 20 I. & N. Dec. 464, 471 (BIA 1992). The BIA denied Dong’s motion because she failed to satisfy the standard for reopening — ie., she failed to demonstrate that the additional evidence was material or previously unavailable or undis-eoverable, see 8 C.F.R. § 1003.2(c)(1), or that the evidence established prima facie eligibility for asylum. Specifically, the BIA found that a remand was not warranted because the majority of the evidence that Dong submitted had already been considered by the IJ, pre-dated the IJ’s April 4, 2007 decision, or concerned events that took place outside of the Fujian Province.
On appeal, Dong argues that, contrary to the BIA’s contention, “[t]he documents submitted were relevant and material and most were not available or known to the Petitioner at the time of her individual hearing.” (Br. 16.) In support of this argument, Dong identifies twelve documents.5 But Dong presented all of these documents during her hearing before the *211IJ. (AR 001216-19.) Clearly then, the BIA did not err in concluding that it was unnecessary to remand the matter to the IJ to consider them.6
Dong also argues that the Board’s decision “is incomplete on its face and does not allow for meaningful review by this Court.” (Br. 15.) Contrary to Dong’s contention, however, we find that the BIA’s decision reflects that it fairly considered the record evidence; as we have previously explained, “[c]onsideration of all evidence does not require comment on all evidence.” Thu v. Att’y Gen., 510 F.3d 405, 416 n. 16 (3d Cir.2007); cf. Zheng, 549 F.3d 260, 271 (3d Cir.2008) (holding that BIA’s decision was inadequate because it “fail[ed] to offer even a cursory review of the record”).
We have considered Dong’s remaining arguments and conclude that they are without merit.7 Therefore, we will deny the petition for review.
. We have jurisdiction under 8 U.S.C. § 1252(a)(1). "[W]hen the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ's decision, we have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004).
. On appeal, the government argues that Dong failed to exhaust before the BIA the argument that she "had not been singled out [for persecution) within the meaning of the applicable regulation.” (Br. 20.) See Abdul-rahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.2003) (explaining that an alien is required to raise and exhaust his remedies as to each claim in order to preserve his right to judicial review of all claims). To the extent that the government is claiming that Dong cannot argue for the first time on appeal that she was singled out for persecution in the past, we agree, although we do not read Dong's brief to be making such an argument. To the extent that the government is claiming that Dong failed to exhaust the argument that she would be singled out for persecution in the future, we disagree; although Dong did purport to limit her argument before the BIA to the Id's finding that she had failed to establish a "pattern or practice” of persecution, she nonetheless challenged the IJ’s determination that her foreign-born children would not "count” for purposes of China’s family planning policy — a determination that the IJ made in the context of her “singled out” analysis.
. Dong also argues that the BIA erred in failing to find that the record evidence demonstrated that she faced persecution in the form of excessive fines for violating the family planning policy. Based on our review of Dong's administrative appeal, however, we conclude that she failed to fairly present this argument to the BIA. (AR 000007-20.) Therefore, this argument is unexhausted. See Abdulrahman, 330 at 594-95.
. We review the BIA's denial of petitioners' motion for remand for abuse of discretion. See Vakkerv. Att’y Gen., 519 F.3d 143, 146 (3d Cir.2008).
. Specifically, Dong identifies the following documents: (1) a New York Times article dated August 18, 2006; (2) a report from CNN.com about the government’s treatment of Chinese women returning from Taiwan; (3) an April 27, 2006 report from the National Population and Family Planning Commission of China; (4) an affidavit from a Chinese national who was involuntarily sterilized after returning from Japan; (5) an article from Life Site News.com dated October 26, 2005; (6) a report from Time.com dated September 19, 2005; (7) an announcement from the Jieshi Town Family Planning Office concerning the family planning campaign; (8) an article from Life SiteNews.com dated May 27, 2005; (9) a flyer from the Family Planning Office of Chang Le City; (10) a December 14, 2004 report from the U.S. House International Relations Committee; (11) John Aird's September 23, 2002 congressional testimony; and (12) Dr. Aird's September 1, 2004 affidavit. (Br. 17-21.)
. We note that Dong did submit a new document from the Ma Wei District Ting Jiang Town Family Planning Office (that her father-in-law had obtained on her behalf) that indicated that, because Dong had already given birth to two children, she "should be the target for sterilization.” (AR 000113.) The BIA found that this document, which was dated December 21, 2007, did not provide a basis for reopening the proceedings because Dong could have solicited it from the town planning office before her hearing in the immigration court. In her brief, Dong does not direcdy challenge this conclusion, but instead argues that the BIA’s consideration of this issue constituted improper fact-finding on review. (Br. 16.) Dong fails to cite any authority for this argument, however, and it is directly contradicted by the applicable regulation. See 8 C.F.R. § 1003.2(c)(1).
. Dong does not challenge the BIA’s denial of her claim for relief under the Convention Against Torture. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479313/ | OPINION OF THE COURT
PER CURIAM.
Fliber Franco-Calzada, a federal inmate, appeals from the order of the United States District Court for the Western District of Pennsylvania dismissing sua sponte his civil rights complaint for failure to state a claim under 28 U.S.C. § 1915A(b)(1) — (2). We will dismiss the appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).
At all relevant times, Franco-Calzada was incarcerated at the Moshannon Valley Correctional Center (“Moshannon”) in Philipsburg, Pennsylvania, a private facility operated by the Cornell Company under contract to the Bureau of Prisons (“BOP”).
Franco-Calzada’s Complaint raises two claims, both of which arise out of his slip and fall from a ladder (attached to his top bunk) on January 2, 2009, in which he fractured two fingers. First, he alleges that the ladder attached to his bunk bed is too small for an adult and that the faulty ladder caused his fall and resulting injury to his fingers. He says that, on information and belief, at least two other inmates have experienced falls because of the ladder problem. He blames the defendants for failing to inspect the ladders and rectify the problem.
Second, Franco-Calzada claims that the medical treatment he received for his broken fingers was delayed unnecessarily in deliberate indifference to his serious medical needs. He alleges that the defendants failed to send him to the local emergency room for immediate treatment of his broken fingers on the night of the accident, they took no x-ray until the following Monday, and they delayed his surgery (to fix the fractures) for two weeks. Franco-Calzada also claims that after initially providing him with pain medication, the prison *219is making him purchase it through the commissary. He asserts that he suffers from permanent stiffness and pain in his fingers. He attached documentation of his prison grievances and the BOP’s responses.
At the initial screening, the Magistrate Judge recommended that the Complaint be dismissed sua sponte for failure to state a claim as to all defendants. The Magistrate Judge first noted that a Bivens action is available for actions against corrections personnel for their deliberate indifference to an inmate’s serious medical needs under the Eighth Amendment. CSee Report at 2.) He ultimately found, however, that Franco-Calzada had no Bivens claim because the factual allegation of a thirteen-day delay in obtaining surgery, alone, was “inadequate to allege deliberate indifference on the part of any defendant.” (Id. at 3.) Next, treating the slip and fall allegations as a Bivens claim, the Magistrate Judge found that Franco-Calzada “again fails to allege any facts that would permit an inference of deliberate indifference.” (Id. at 4-5.) (noting that Franco-Calzada failed to state a claim under the more lenient simple negligence standard under Pennsylvania law.)
Because both of Franco-Calzada’s claims lacked merit, the Magistrate Judge found it unnecessary to analyze the liability of individual defendants Cornell Companies, Moshannon, Warden Zenk, and Doctor Agra. He noted, however, that the Supreme Court, in Correctional Serv. Corp. v. Malesko, 534 U.S. 61, 71-72, 74, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001), declined to extend the Bivens remedy to claims against private corporations operating under federal contracts. Acknowledging that Malesko “left open an obvious question, whether a Bivens action can be alleged against a private individual,” the Magistrate Judge looked to decisions of the Courts of Appeals that have held that no such actions should be implied against private individual actors. (Id. at 6.) The Magistrate Judge found that “[i]n the absence of persuasive authority to the contrary, even a complaint adequately alleging a claim against any individual defendant should be dismissed.”1 (Id.) The District Court overruled Franco-Calzada’s objections, adopted the Magistrate Judge’s Report, and dismissed the Complaint for failure to state a claim. Franco-Calzada filed this timely appeal.
We have jurisdiction pursuant to 28 U.S.C. § 1291. See Deutsch v. United States, 67 F.3d 1080, 1083 (3d Cir.1995). Our review is plenary. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). Franco-Calzada has been granted leave to proceed in forma pauperis on appeal. Because his appeal from the dismissal of Complaint lacks arguable merit, we will dismiss it pursuant to § 1915(e) (2) (B) (i). See Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827,104 L.Ed.2d 338 (1989).
In order to survive dismissal, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” See Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937, 1949, 173 L.Edüd 868 (2009). Well-pleaded factual content is accepted as true for purposes of determining whether the com*220plaint states a plausible claim for relief. Id. at 1950. The assumption of truth does not apply, however, to legal conclusions couched as factual allegations or to “[t]hreadbare recitals of the elements of a cause of action, supported by mere eonclu-sory statements.” Id. at 1949. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
After reviewing the District Court pleadings and notice of appeal, we conclude as a matter of law that Franco-Calzada’s Complaint was correctly dismissed for failure to state a claim. There is nothing in the Complaint’s specific allegations from which we can plausibly infer that the defendants were deliberately indifferent to Franco-Calzada’s serious medical needs or to prison conditions pertaining to the use of an allegedly unsafe ladder in his cell. The protections afforded prisoners by the Due Process Clause of the Fourteenth Amendment are not triggered by the mere negligence of prison officials. See Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Likewise, Eighth Amendment liability requires “more than ordinary lack of due care for the prisoner’s interests or safety.” Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). Regarding medical mistreatment claims in particular, “[i]t is well-settled that claims of negligence or medical malpractice, without some more culpable state of mind, do not constitute ‘deliberate indifference.’ ” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.1999); see also White v. Napoleon, 897 F.2d 103, 108 (3d Cir.1990) (concluding that mere medical malpractice cannot give rise to a violation of the Eighth Amendment). Only “unnecessary and wanton infliction of pain” or “deliberate indifference to the serious medical needs” of prisoners is sufficiently egregious to rise to the level of a constitutional violation. White, 897 F.2d at 108-09 (quoting Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). Here, the allegations contained in the Complaint, taken as true, assert a simple negligence claim at most, and thus, do not state a claim of a constitutional violation under the Eighth Amendment.
The District Court did not consider granting Franco-Calzada an opportunity to amend the complaint in order to cure the stated defects. We see no need to remand the matter, however, because we conclude that an amendment would have been futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.2002). Here, no additional allegations would cure the defects in the Complaint as to the slip and fall claim. Moreover, the BOP’s grievance responses that Franco-Calzada attached to his Complaint, lead to the plausible inference that the medical staff treated Franco-Calzada promptly and without unnecessary delay. The medical defendants treated with him with first-aid and started him on antibiotics on the day he was injured. The orthopedic specialist evaluated Franco-Calzada’s injuries on January 6, 2009. After a pre-operative visit on January 12, Franco-Calzada underwent surgery on January 15, 2009.
Our independent review reveals that there is no arguable basis to challenge the District Court’s dismissal order on appeal. Accordingly, Franco-Calzada’s appeal will be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
. We need not reach the issue whether Males-ko bars Bivens claims against the individual defendants in this case because we conclude that the appeal has no arguable merit in any event. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479318/ | OPINION OF THE COURT
HARDIMAN, Circuit Judge.
Hilda B. Gozun petitions for review of a final order of the Board of Immigration Appeals (BIA) ordering her removal from the United States because she made material misrepresentations to a United States consular official when applying for a visa. We will deny the petition.
I.
Because we write for the parties, we recount only the facts necessary to our decision.
In 1997, Gozun went to the United States consulate in Manila, Philippines, to obtain a visitor’s visa. Gozun presented various documents, including a falsified birth certificate stating she was “Hilda Calderon Valmonte,” born on November 22, 1980. In reality, Gozun was born eight years earlier, on November 22, 1972. The birth certificate also falsely identified Anthony Valmonte, who procured the forged birth certificate for Gozun and accompanied her to the consulate, as her father.1
Using a Philippine passport that also identified her as “Hilda Calderon Val-monte,” Gozun entered the United States on September 5, 1997 as a non-immigrant visitor with permission to remain until March 4, 1998. Instead of leaving the United States, Gozun began living and working in New Jersey. In 2002, Gozun’s employer filed a petition to obtain an alien worker visa for her. After the petition was approved in 2004, Gozun asked the Department of Homeland Security (DHS) to classify her as a lawful permanent resident of the United States. In a subsequent interview with a DHS official, Gozun admitted to using a counterfeit birth certificate to obtain her visitor’s visa in 1997. Consequently, her petition was denied.
In 2005, DHS commenced proceedings to remove Gozun from the United States, contending she was inadmissible under 8 U.S.C. § 1182(a)(6)(C)® and therefore subject to removal under 8 U.S.C. § 1227(a)(1)(A) because she made material misrepresentations when obtaining her visitor’s visa in 1997.2 At a hear*278ing before the Immigration Judge (IJ), Gozun admitted making false statements to obtain her visa in 1997 but denied that her misrepresentations were material. The IJ disagreed, finding Gozun’s false statements were material because they “cut off a line of inquiry” by consular officials into her actual age, family history, and personal circumstances. Such information, the IJ reasoned, was relevant to a determination of whether Gozun should have been issued a visitor’s visa. The IJ thus concluded that Gozun was inadmissible and subject to removal under 8 U.S.C. § 1227(a)(1)(A). Accordingly, the IJ denied her petition for classification as a lawful permanent resident and ordered her removed to the Philippines. After the BIA summarily affirmed the IJ’s determination, Gozun petitioned this Court for review.3
II.
We have jurisdiction over Gozun’s petition for review of the BIA’s final order of removal pursuant to 8 U.S.C. § 1252. We review the BIA’s factual findings to determine whether they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We will reverse the BIA’s factual findings only if the evidence “was so compelling that no reasonable factfinder could fail to find” for the petitioner. Id. at 483-84, 112 S.Ct. 812. “To the extent that the BIA’s decision rests on an interpretation of the agency’s governing statute on a matter as to which Congress has not expressed a clear intent, we defer to the agency’s reasonable interpretation of the statutory language.” Mwongera v. INS, 187 F.3d 323, 327 (3d Cir.1999) (citing INS v. Aguirre-Aguirre, 526 U.S. 415, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999)).
III.
The present case arose when Gozun petitioned DHS to adjust her status to that of a lawful permanent resident alien. An alien seeking an adjustment of status is removable from the United States if she is inadmissible under existing immigration law. 8 U.S.C. § 1227(a)(1)(A). And an alien “who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa” is inadmissible. 8 U.S.C. § 1182(a)(6)(C)(i). Here, the IJ concluded^ — and the BIA agreed — that the material misrepresentations Gozun made to obtain her visa in 1997 rendered her inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i) and therefore subjected her to removal under 8 U.S.C. § 1227(a)(1)(A).
Gozun does not dispute that she made misrepresentations when she obtained her visitor’s visa. Rather, she contends the IJ and BIA incorrectly found her misrepresentations material because she may have been issued a visa even if she had told consular officials the truth. Because her misrepresentations were not material, argues Gozun, she was not inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i).
Although Gozun correctly notes that materiality has not been defined precisely, the BIA has long considered a false statement in a visa application to be material “if it tends to shut off a line of inquiry which *279is relevant to the alien’s eligibility, and which might well have resulted in a proper determination that he be excluded.” Matter of Ng, 17 I. & N. Dec. 536, 537 (B.I.A.1980); Matter of S-and B-C-, 9 I. & N. Dec. 436, 448-49 (B.I.A.1961). Because the BIA’s definition of a material misrepresentation is a reasonable interpretation of the relevant statutory language, we defer to it. See Mwongera, 187 F.3d at 330.
The record indicates that Gozun’s misrepresentations were undoubtedly material under the BIA’s definition. By falsifying her birth certificate, Gozun presented herself as a teenage girl who sought to visit the United States with her father, Valmonte. These misrepresentations shut off a line of inquiry that was relevant to Gozun’s eligibility for a visa by preventing consular officials from inquiring into the true details of her family history and personal circumstances. Had officials considering Gozun’s visa application known the truth — that she was a twenty-four-year-old woman with only a part-time job who wished to travel alone to the United States — they might well have questioned whether Gozun actually would return to the Philippines when her visa expired and thus acted differently on her application. By misleading consular officials, Gozun prevented them from exploring potentially relevant facts which could have informed their determination of whether to issue her a visitor’s visa. The BIA’s determination that Gozun’s misrepresentations were material was thus supported by substantial evidence.
Gozun claims a remand is warranted because the BIA did not examine whether “disclosure of the true facts would have led to a denial of the visa petition.” In support of this argument, Gozun notes the IJ’s observation that it was possible consular officials would have issued the visa even if Gozun had told the truth. See App. at 44 (“[W]ho knows what the consul would have done[?] They may have denied the visa. They may have issued the visa.”). But the relevant inquiry is not whether officials necessarily would have denied her visa application had they known the truth. Instead, the BIA’s definition asks whether further investigation into information concealed by Gozun “might well have resulted” in a refusal of her application. Matter of Ng, 17 I. & N. Dec. at 537 (emphasis added). As we have noted, consular officials might well have denied Go-zun’s visa application had they known the truth about her. Accordingly, the BIA’s failure to examine whether the facts concealed by Gozun definitely would have resulted in a denial of her application does not require remand.4
IV.
Because the determination of the BIA was supported by substantial evidence in the record, we will deny Gozun’s petition for review.
. In the proceedings below, Valmonte is variously identified as "Vermonte,” “Fermonte,” and "Valmonte.” We use “Valmonte” because Gozun obtained travel documents using that name.
. In a supplemental filing, DHS also alleged that Gozun was subject to removal under 8 *278U.S.C. § 1227(a)(1)(B) because she had remained in the United States beyond the expiration of her visa on March 4, 1998. Gozun apparently did not contest this allegation.
. Because the BIA largely adopted the findings and analysis of the IJ, we may review the portions of the IJ's opinion on which the BIA relied. See Camara v. Attorney General, 580 F.3d 196, 201 (3d Cir.2009).
. Gozun’s argument that her misrepresentations did not confer upon her an immigration benefit also fails because it does not change the fact that she deprived consular officials of the opportunity to probe relevant facts that might well have led to the denial of her visa application. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479320/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cruso R. Wallace appeals from the district court’s orders denying his 18 U.S.C. § 3582 (2006) motion for reduction of sentence and his motion for reconsideration. We have reviewed the record in this case and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Wallace, No. 5:02-cr-00101-3, 2009 WL 2392152 (S.D. W. Va. June 9 & July 31, 2009). In addition, we note that Wallace’s claims on appeal are barred by our decision in United States v. Dunphy, 551 F.3d 247, 251-52 (4th Cir.2009), cert. denied, — U.S.-, 129 S.Ct. 2401, 173 L.Ed.2d 1296 (2009) (finding jurisdictional bar to reducing prison term below the amended Guidelines range). 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/8479322/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cecil McDonald Davis appeals the district court’s orders denying his petition to reopen the appeal period and his motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Davis, No. 1:94-cr-00370-TSE-l (E.D. Va. filed Aug. 24, 2009 & entered Aug. 27, 2009; filed Sept. 22, 2009 & entered Sept. 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/8479323/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Timothy Williams appeals the district court’s order accepting the recommendation of the magistrate judge and granting summary judgment to Defendants in this action alleging employment discrimination under Title VII of the Civil Rights Act of 1964, as amended, and raising related claims under state law. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Williams v. Force Protection Industries Inc., No. 2:07-cv-03679-MBS, 2009 WL 857400 (D.S.C. Mar. 31, 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/8479325/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mary L. Battle appeals the district court’s*order dismissing her civil complaint for failure to state a claim upon which relief could be granted. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Battle v. JP Morgan Chase Bank, N.A., No. 2:09-cv-00462-RAJ-FBS (E.D.Va. Nov. 20, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before *329the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479330/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Bethea appeals the district court’s orders accepting the recommendations of the magistrate judge and denying relief on his civil complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Bethea v. Blanchard & Johnson Transp., No. 4:07-cv-02257-RBH, 2008 WL 3992652 (D.S.C. Aug. 25, 2008; 2009 WL 5214312, Dec. 28, 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/8479332/ | *335Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding-precedent in this circuit.
PER CURIAM:
Curtis Lee Watson appeals the district court’s order denying Watson’s motion for injunctive and declaratory relief. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Watson, No. l:88-cr-00201-LMB-1 (E.D. Va. filed Nov. 30, 2009; entered Dec. 1, 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/8479333/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Casual Bianca Lyons seeks to appeal the district court’s order denying her motion for new counsel on her 18 U.S.C. § 3582(c)(2) (2006) motion. 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 Lyons 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/8479335/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Edwin Alvanez appeals the district court’s order denying his motion to retain a handwriting specialist. We have reviewed the record and find no reversible error. Accordingly, we deny Alvanez’s *337motions for transcript at government expense and to retain a handwriting specialist, and affirm for the reasons stated by the district court.* United States v. Alvanez, No. 8:07-cr-00326-DKC-2 (D.Md. Nov. 16, 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.
We decline to consider issues Alvanez raises in his informal brief which are not related to his present appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479324/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Timothy Williams appeals the district court’s order accepting the recommendation of the magistrate judge and granting summary judgment to Defendants in this action alleging employment discrimination under Title VII of the Civil Rights Act of 1964, as amended, and raising related claims under state law. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Williams v. Force Protection Industries Inc., No. 2:07-cv-03679-MBS, 2009 WL 857400 (D.S.C. Mar. 31, 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/8479329/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Bethea appeals the district court’s orders accepting the recommendations of the magistrate judge and denying relief on his civil complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Bethea v. Blanchard & Johnson Transp., No. 4:07-cv-02257-RBH, 2008 WL 3992652 (D.S.C. Aug. 25, 2008; 2009 WL 5214312, Dec. 28, 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/8479331/ | *335Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding-precedent in this circuit.
PER CURIAM:
Curtis Lee Watson appeals the district court’s order denying Watson’s motion for injunctive and declaratory relief. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Watson, No. l:88-cr-00201-LMB-1 (E.D. Va. filed Nov. 30, 2009; entered Dec. 1, 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/8479334/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Casual Bianca Lyons seeks to appeal the district court’s order denying her motion for new counsel on her 18 U.S.C. § 3582(c)(2) (2006) motion. 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 Lyons 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/8479336/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Edwin Alvanez appeals the district court’s order denying his motion to retain a handwriting specialist. We have reviewed the record and find no reversible error. Accordingly, we deny Alvanez’s *337motions for transcript at government expense and to retain a handwriting specialist, and affirm for the reasons stated by the district court.* United States v. Alvanez, No. 8:07-cr-00326-DKC-2 (D.Md. Nov. 16, 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.
We decline to consider issues Alvanez raises in his informal brief which are not related to his present appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479337/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Linder, a federal prisoner, appeals the district court’s order denying relief on his 28 U.S.C. § 2241 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Linder v. United States, No. 5:09-hc-02094-D (E.D.N.C. Oct. 20, 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/8479339/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Samuel Larell Anderson appeals the district court’s order denying his motion to modify his sentence, pursuant to 18 U.S.C. § 8582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See United States v. Anderson, No. 0:04-cr-00353-CMC-3 (D.S.C. Oct. 28, 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/8479341/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Curtis Lee Watson appeals the district court’s order denying Watson’s petition to appear before the court. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Watson, No. l:88-cr-00201-LMB-1 (E.D.Va. Nov. 6, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479348/ | Vacated and remanded by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael D. Stephenson appeals the district court’s orders denying his motion filed pursuant to 18 U.S.C. § 3582(c)(2) (2006), and motions for clarification and reconsideration. In light of our recent decision in United States v. Stewart, 595 F.3d 197 (4th Cir.2010), we vacate the district court’s orders and remand for further proceedings consistent with Stewart. *353We 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.
VACATED AND REMANDED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479350/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Meblin Xiomar Figueroa appeals the district court’s orders denying his motion to compel the Government to file a Fed. R,Crim.P. 35(b) substantial assistance motion and denying his motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we deny Figueroa’s motion for transcripts at government expense and affirm for the reasons stated by the district court. United States v. Figueroa, No. 6:05-cr-00024-nkm-1 (W.D.Va. Aug. 19, 2009 & Sept. 2, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479352/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shirley A. Johnson appeals the district court’s order accepting the recommendation of the magistrate judge and denying her employment discrimination and retaliation action. We have reviewed the record *358and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Johnson v. Midlands Technical Coll, No. 3:08-cv-00803-JFA, 2009 WL 3063048 (D.S.C. Sept. 21, 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/8479338/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Linder, a federal prisoner, appeals the district court’s order denying relief on his 28 U.S.C. § 2241 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Linder v. United States, No. 5:09-hc-02094-D (E.D.N.C. Oct. 20, 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/8479342/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Curtis Lee Watson appeals the district court’s order denying Watson’s petition to appear before the court. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Watson, No. l:88-cr-00201-LMB-1 (E.D.Va. Nov. 6, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479343/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Luther Vereen, Jr., appeals the district court’s order denying his 18 U.S.C. § 3582(c) (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. Vereen, No. 4:03-cr-00271-CWH-1 (D.S.C. Aug. 10, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479346/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Williams, Jr., appeals the district court’s order denying his motion for a reduction of sentence 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. Williams, No. 5:04-cr-00322-FL-l (E.D.N.C. July 1, 2009). We deny Williams’ 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/8479351/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shirley A. Johnson appeals the district court’s order accepting the recommendation of the magistrate judge and denying her employment discrimination and retaliation action. We have reviewed the record *358and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Johnson v. Midlands Technical Coll, No. 3:08-cv-00803-JFA, 2009 WL 3063048 (D.S.C. Sept. 21, 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/8479353/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Latif Rashe’d appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) complaint without prejudice for failure to pay the filing fee or to apply to proceed in forma pauperis. We have reviewed the record and find no reversible error. As the district court dismissed Rashe’d’s complaint without prejudice, his remedy is to refile his complaint along with an application to proceed in forma pauperis or submit the required filing fee. Accordingly, we affirm for the reasons stated by the district court. Rashe’d v. Johnson, No. l:09-cv-00571-AJT-IDD (E.D. Va. filed Aug. 3, 2009 & entered Aug. 5, 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/8479355/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jason Zawadzki, a federal prisoner, appeals the district court’s order dismissing his 28 U.S.C. § 2241 (2006) petition for a writ of habeas corpus. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Zawadzki v. O’Brien, No. 7:09-cv-00114-gec-mfu, 2009 WL 2596600 (W.D.Va. Aug. 20, 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/8479357/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding-precedent in this circuit.
PER CURIAM:
Kingdawud Mujahid Burgess appeals the district court’s order denying his motion to reconsider the court’s earlier order dismissing his action without prejudice based on Burgess’ failure to comply with *360court orders to provide notification of his transfer, release, or relocation, or risk involuntary dismissal pursuant to Fed. R.Civ.P. 41(b). We have reviewed the record and find no reversible error. Accordingly, we affirm on the reasoning of the district court. Burgess v. Ybarra, No. 1:08-cv-00120-GBL-TCB, 2009 WL 2243767 (E.D.Va. July 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/8479359/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellants appeal the district court’s order dismissing their civil action for lack of jurisdiction. We have reviewed the record and find no reversible error. Accordingly, we deny leave to proceed in forma pauper-is and dismiss the appeal for the reasons stated by the district court. Garrett v. Bums, No. 2:09-cv-00558-RAJ-FB S (E.D.Va. Dec. 16, 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.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479361/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Chunga Haki Matata seeks to appeal the district court’s order denying his motion for reconsideration of the order reducing his sentence 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. Matata, No. 4:94-cr-00044-LHT-12 (W.D.N.C. May 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/8479363/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Walter D. Hayes appeals the district court’s order denying reconsideration of the dismissal for lack of jurisdiction of Hayes’ civil complaint. We have reviewed the record and find no reversible error. Accordingly, we deny Hayes’ motion to overturn the district court’s decision and affirm for the reasons stated by the district court. Hayes v. Morrison, No. 2:09-*362cv-00431-JBF-FBS (E.D.Va. Nov. 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/8479365/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Waldo Fenner appeals the district court’s order accepting the recommendation of the magistrate judge, as modified, and dismissing his civil rights action. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Fenner v. Bell, No. l:08-cv-00367-TDS-DPD, 2009 WL 6372547 (M.D.N.C. Nov. 13, 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.
AFFIMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479354/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Latif Rashe’d appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) complaint without prejudice for failure to pay the filing fee or to apply to proceed in forma pauperis. We have reviewed the record and find no reversible error. As the district court dismissed Rashe’d’s complaint without prejudice, his remedy is to refile his complaint along with an application to proceed in forma pauperis or submit the required filing fee. Accordingly, we affirm for the reasons stated by the district court. Rashe’d v. Johnson, No. l:09-cv-00571-AJT-IDD (E.D. Va. filed Aug. 3, 2009 & entered Aug. 5, 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/8479356/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jason Zawadzki, a federal prisoner, appeals the district court’s order dismissing his 28 U.S.C. § 2241 (2006) petition for a writ of habeas corpus. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Zawadzki v. O’Brien, No. 7:09-cv-00114-gec-mfu, 2009 WL 2596600 (W.D.Va. Aug. 20, 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/8479360/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellants appeal the district court’s order dismissing their civil action for lack of jurisdiction. We have reviewed the record and find no reversible error. Accordingly, we deny leave to proceed in forma pauper-is and dismiss the appeal for the reasons stated by the district court. Garrett v. Bums, No. 2:09-cv-00558-RAJ-FB S (E.D.Va. Dec. 16, 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.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479362/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Chunga Haki Matata seeks to appeal the district court’s order denying his motion for reconsideration of the order reducing his sentence 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. Matata, No. 4:94-cr-00044-LHT-12 (W.D.N.C. May 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/8479364/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Walter D. Hayes appeals the district court’s order denying reconsideration of the dismissal for lack of jurisdiction of Hayes’ civil complaint. We have reviewed the record and find no reversible error. Accordingly, we deny Hayes’ motion to overturn the district court’s decision and affirm for the reasons stated by the district court. Hayes v. Morrison, No. 2:09-*362cv-00431-JBF-FBS (E.D.Va. Nov. 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/8479366/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Waldo Fenner appeals the district court’s order accepting the recommendation of the magistrate judge, as modified, and dismissing his civil rights action. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Fenner v. Bell, No. l:08-cv-00367-TDS-DPD, 2009 WL 6372547 (M.D.N.C. Nov. 13, 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.
AFFIMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479369/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lourdes Iglesias appeals the district court’s order granting Defendant’s motion to dismiss her claims against it. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s order. See Iglesias v. Wal-Mart Stores East, L.P., No. 2:09-cv-00008-MSD-FBS (E.D.Va. Oct. 26, 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/8479371/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dudley Smith appeals the district court’s order granting his 18 U.S.C. § 3582(c) (2006) motion. Insofar as Smith claims the court could have considered an even lower sentence below the Sentencing Guidelines range, this claim is foreclosed by United States v. Dunphy, 551 F.3d 247 (4th Cir.) (“[A] district judge is not authorized to reduce a defendant’s sentence below the amended guideline range.”), cert. denied, -U.S.-, 129 S.Ct. 2401, 173 L.Ed.2d 1296 (2009). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Smith, No. 3:99-cr-00007-jpj-l, 2008 WL 2405833 (WD.Va. June 11, 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/8479373/ | PER CURIAM: *
The Federal Public Defender appointed to represent Silverio Miranda-Roman 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). Miranda-Roman 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/8479378/ | PER CURIAM: *
The Federal Public Defender appointed to represent Marcos Garcia Iturralde 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). Garcia Iturralde 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/8479380/ | PER CURIAM: *
The attorney appointed to represent Carvorsia Devionn Rose 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). Rose 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/8479382/ | PER CURIAM: *
The Federal Public Defender appointed to represent Marcelino Mondragon-Fi-gueroa 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). Mon-dragon-Figueroa 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/8479370/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lourdes Iglesias appeals the district court’s order granting Defendant’s motion to dismiss her claims against it. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s order. See Iglesias v. Wal-Mart Stores East, L.P., No. 2:09-cv-00008-MSD-FBS (E.D.Va. Oct. 26, 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/8479372/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dudley Smith appeals the district court’s order granting his 18 U.S.C. § 3582(c) (2006) motion. Insofar as Smith claims the court could have considered an even lower sentence below the Sentencing Guidelines range, this claim is foreclosed by United States v. Dunphy, 551 F.3d 247 (4th Cir.) (“[A] district judge is not authorized to reduce a defendant’s sentence below the amended guideline range.”), cert. denied, -U.S.-, 129 S.Ct. 2401, 173 L.Ed.2d 1296 (2009). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Smith, No. 3:99-cr-00007-jpj-l, 2008 WL 2405833 (WD.Va. June 11, 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/8479374/ | PER CURIAM: *
The Federal Public Defender appointed to represent Silverio Miranda-Roman 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). Miranda-Roman 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/8479375/ | PER CURIAM: *
Russell Washington, federal prisoner #28534-034, appeals the district court’s grant of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence based on the amendments to the crack cocaine Guideline. Washington’s appeal waiver does not bar this appeal. See United States v. Cooley, 590 F.3d 298, 297 (5th Cir.2009).
Washington argues that the district court abused its discretion in failing to sentence him towards the lower end of the guidelines range, as it did at his original sentencing. He contends that the district court’s order granting his § 3582(c)(2) motion did not account for any of the case-specific factors listed in U.S.S.G. § 1B1.10 and the commentary accompanying the policy statement. He argues that considering his post-sentencing conduct, the district court’s failure to grant a comparable reduction in his sentence to the lower end of the new guidelines range was an abuse of discretion.
A district court’s decision whether to reduce a sentence under § 3582(c)(2) is reviewed for an abuse of discretion, its interpretation of the Guidelines is reviewed de novo, and findings of fact are reviewed for clear error. United States v. Evans, 587 F.3d 667, 672 (5th Cir.2009), petition for cert. filed (Jan. 28, 2010) (No. 09-8939); United States v. Doublin, 572 F.3d 235, 237 (5th Cir.2009), cert. denied, - U.S. -, 130 S.Ct. 517, 175 L.Ed.2d 366 (2009).
The district court was under no obligation to reduce the sentence at all, and it had no obligation to impose any particular sentence within the recalculated guidelines range. Evans, 587 F.3d at 673. The district court granted Washington’s § 3582(c)(2) motion and reduced his sentence; thus, we can assume that the court considered the 18 U.S.C. § 3553(a) factors and concluded that those factors weighed in Washington’s favor. Id.
To the extent that Washington argues that the district court erred in merely stating that the reduced sentence was within the amended guidelines range, rather than providing a more specific explanation of reasons similar to the ones given at the original sentencing, this argument also fails. When a district court rules on a § 3582(c)(2) motion, it is not required to *391state findings of fact, conclusions of law, or to give reasons. Evans, 587 F.3d at 674. Washington has not demonstrated that the district court abused its discretion in reducing his sentence to the top of the amended guidelines range.
AFFIRMED.
Pursuant to 5th Ciu. 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 Cut. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479377/ | PER CURIAM: *
The Federal Public Defender appointed to represent Marcos Garcia Iturralde 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). Garcia Iturralde 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/8479379/ | PER CURIAM: *
The attorney appointed to represent Carvorsia Devionn Rose 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). Rose 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/8479381/ | PER CURIAM: *
The Federal Public Defender appointed to represent Marcelino Mondragon-Fi-gueroa 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). Mon-dragon-Figueroa 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/8479385/ | PER CURIAM: *
The Federal Public Defender appointed to represent Alfredo Martinez Baldares 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 Baldares has not filed a response. Our independent review of the record and counsel’s brief *401discloses 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/8479388/ | PER CURIAM: *
The Federal Public Defender appointed to represent Derrick Tyrone Daugherty 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). Daugherty 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/8479390/ | PER CURIAM: *
The Federal Public Defender appointed to represent Juanita Colunga-Gomez 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). Colunga-Gomez has *403not 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/8479392/ | PER CURIAM: *
The Federal Public Defender appointed to represent Raul Guevara-Villanueva 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). Guevara-Villanueva has not filed a response. Our independent review of the record and counsel’s brief *405discloses 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 Cm. 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/8479394/ | PER CURIAM: *
The Federal Public Defender appointed to represent Jose Homero Benavidez-Gar-cia 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). Benavidez-Garcia 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/8479396/ | PER CURIAM: *
The Federal Public Defender appointed to represent Fabian Rojas-Figueroa 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). Rojas-Figueroa 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. *408The Federal Public Defender appointed to represent Marcos Reyes-Idrogo 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). Reyes-Idrogo 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 Cut. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479387/ | PER CURIAM: *
The Federal Public Defender appointed to represent Derrick Tyrone Daugherty 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). Daugherty 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/8479389/ | PER CURIAM: *
The Federal Public Defender appointed to represent Juanita Colunga-Gomez 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). Colunga-Gomez has *403not 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/8479391/ | PER CURIAM: *
The Federal Public Defender appointed to represent Raul Guevara-Villanueva 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). Guevara-Villanueva has not filed a response. Our independent review of the record and counsel’s brief *405discloses 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 Cm. 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/8479395/ | PER CURIAM: *
The Federal Public Defender appointed to represent Fabian Rojas-Figueroa 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). Rojas-Figueroa 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. *408The Federal Public Defender appointed to represent Marcos Reyes-Idrogo 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). Reyes-Idrogo 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 Cut. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479403/ | PER CURIAM: *
The attorney appointed to represent Juan Daniell Ingram has moved for leave *413to 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). Ingram 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/8479405/ | PER CURIAM: *
The attorney appointed to represent Pedro Perez-Mendoza 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). Perez-Mendoza 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/8479408/ | PER CURIAM: *
The Federal Public Defender appointed to represent Juan Gonzales 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). Gonzales has filed a response. Our independent review of the record, counsel’s brief, and Gonzales’s response 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 APPEALS ARE DISMISSED. See 5th Cíe. 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/8479410/ | ORDER
The last time this case was before us, we concluded that appellant Vernon D. Woods was entitled to be resentenced, because the district court had erred when it concluded that Woods was a career offender for purposes of § 4B1.1 of the United States Sentencing Guidelines. See United States v. Woods, 576 F.3d 400 (7th Cir.2009) (Woods I). In keeping with our order, the district court held a second sentencing hearing on remand, after which it imposed a sentence of 144 months’ imprisonment and six years’ supervised release on his two drug distribution charges, and a concurrent sentence of 120 months for possessing a firearm and ammunition as a convicted felon. Woods’s original sentence had been 192 months’ imprisonment, and so his first appeal had the effect of shaving four years off of his overall sentence. Nevertheless, the court’s sentence was considerably higher than the 63-78 month range that the guidelines recommended, once the career-criminal provisions were set aside.
Woods has appealed again, asserting that the district court failed to give an adequate explanation for choosing a sentence so much higher than the top of the guidelines range. He infers, from that lack of explanation, that the district court failed to take into account the risk that its sentence could lead to unwarranted sentencing disparities among similar defendants. See 18 U.S.C. § 3553(a)(6). Our review of the sentencing record satisfies us, however, that the district court acted within its discretion when it chose a proper sentence for Woods, and that it committed no procedural error requiring reversal. We therefore affirm.
There is little more that we need add. As we explained in United States v. Moreno-Padilla, 602 F.3d 802 (7th Cir.2010):
Our review of sentencing decisions proceeds in two steps.... First, we ensure that the district court did not commit any “significant procedural error,” examples of which include failing to calculate, or improperly calculating, the applicable Guidelines range; treating the Guidelines as mandatory; or failing to consider the 18 U.S.C. § 3553(a) factors .... Once we are convinced that the sentencing judge followed correct procedure, we then consider the substantive reasonableness of the sentence.... We presume that within-Guidelines sentences are reasonable, ... and we re*602view sentences only for abuse of discretion. ...
602 F.3d at 810 (citations omitted). In addition, the court “must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” Gall v. United States, 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), citing Rita v. United States, 551 U.S. 338, 356-57, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007).
As we noted, Woods’s primary argument in this appeal is that the district court failed to offer an adequate explanation for why it chose a sentence (144 months) that was nearly twice the top of the recommended guidelines range (78 months). Such a sentence, he continues, violates the principle expressed in § 3553(a)(6) that unwarranted disparities among similar defendants must be avoided. We reject both of these propositions. The district court began the resentencing hearing by allowing both Woods and the government to present arguments about what sentence would be appropriate. The government urged the coui't to reinstate the 192-month sentence it had originally imposed, in light of the serious nature of the drug and gun charges Woods faced, the fact that his criminal history included four felony drug-convictions as well as the conviction for involuntary manslaughter (which we discussed in Woods I), and the likelihood of recidivism. Woods responded that 192 months was well in excess of any sentence that met the requirements of § 3553(a). He pointed out that his prior drug convictions all involved small quantities. He also brought to the court’s attention the fact that, since his original sentencing, he had earned his GED, completed drug treatment and education programs, and had not received any disciplinary tickets while incarcerated. Finally, he argued that his dysfunctional upbringing was a reason for a sentence within the revised guidelines range.
The court’s comments show that it took all of this information into account. It found — contrary to Woods’s argument— that his criminal history was quite serious. It noted that despite Woods’s numerous prior drug convictions, he had proved thus far to be incorrigible. The fact that Woods also possessed a loaded .357 Magnum in connection with his current offense also supported a higher sentence, in the court’s view. On a number of occasions, Woods had violated the conditions of his state parole and his parole had been revoked. Summarizing, the court said “I must deter this defendant, and the only way is imprisonment for a substantial period of time, and a light sentence would have no deterrent effect for one with his record.” The court acknowledged that Woods had used his time in prison well and that his upbringing had been difficult, but that these considerations did not override the need to protect society from him and to deter him from committing future crimes. It specifically noted that the sentence it chose was lower than the one the government had recommended, but significantly higher than the recommended guidelines sentence.
From a procedural standpoint, this explanation was entirely sufficient to allow this court to follow the district court’s reasoning. Any disparity between Woods’s sentence and that of other defendants facing similar charges was justified by Woods’s own characteristics. Woods is correct that it would be wise for sentencing courts to consider the guidelines when they determine how much incremental punishment should be applied, United States v. Kirkpatrick, 589 F.3d 414, 416 (7th Cir.2009), but the district court is not required to express its conclusions in those terms. Finally, we see nothing substantively unreasonable about the sentence the court chose.
*603We therefore AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479414/ | ORDER
Valerie Filar worked as a full-time substitute teacher in the Polish bilingual program at Foreman High School in Chicago. In 1999, the principal of the school reclassified her as a roving substitute. Believing that decision was because of her age, she sued the Chicago School Reform Board of Trustees under the Age Discrimination in Employment Act. The case went to trial, and the jury returned a verdict for the Board. Filar appeals, claiming she is entitled to a new trial because the district court erred in ruling on three evidentiary matters. We affirm.
I.
In the fall of 1992, there was an acute need for Polish bilingual teachers at Foreman High School in Chicago. Dr. John Garvey, the principal at Foreman High, hired 62-year-old Valerie Filar to teach computer in the school’s Polish bilingual education program. Filar was classified as a “full-time basis substitute” (FTB), a non-tenure-track instructor who teaches in a particular school for an entire school year. FTBs have less seniority than tenure-track “appointed” teachers, meaning that when teaching positions lose funding or are no longer needed, FTBs are “displaced” first. (“Displacement” means that a teacher is re-categorized as a roving “cadre substitute” who fills temporary vacancies in city schools as they arise.). And among FTBs with similar credentials, the least senior is the first to go.
One year later, Garvey displaced Filar. She grieved that decision to the Chicago Board of Education. While her grievance was under review, Garvey hired two FTB *609teachers for the Polish bilingual program — Piotr Monaco and Kornelia Rydberg — both of whom were younger than Filar. The Board eventually reinstated Filar in August 1994 after concluding that her displacement was improper.
Over the next several years, Filar taught in a traditional classroom setting and received either “satisfactory” or “excellent” overall reviews from Garvey. Then, from 1997 to 1999, she supervised students in a computer lab where the instruction was computer-based; she received highest possible “superior” overall ratings for those two years. In contrast, Rydberg received all “superior” reviews and Monaco received all “superior” and one “satisfactory” from 1994 to 1999 while teaching in traditional classroom settings.
In the summer of 1999, Garvey appointed Rydberg and Monaco to tenure-track positions. Then, in September 1999, Garvey displaced Filar. She filed a grievance with the Board, alleging the displacement was improper because she was not the least senior FTB. The Board held a hearing concerning the grievance with Filar, two union representatives, and a hearing officer present. The Board eventually upheld the displacement after concluding that Filar was the least senior FTB in the Polish bilingual program.
In 2004, Filar sued the Board for violations of the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA). The district court granted summary judgment for the Board on both claims. Filar appealed; we affirmed on the ADA claim but reversed on the ADEA claim. Filar v. Board of Educ. of City of Chicago, 526 F.3d 1054 (7th Cir.2008). The district court then held a trial on the age discrimination claim. Fi-lar attempted to prove that claim, at least in part, by showing that Garvey had appointed the younger comparators (Monaco and Rydberg) to tenure-track positions in the summer of 1999, leaving the older Fi-lar as the only FTB in the Polish bilingual program and thus an easy target for displacement. During the trial, the district court excluded evidence of Filar’s 1993 displacement and grievance under Federal Rule of Evidence 403 after concluding the probative value was substantially outweighed by the danger of unfair prejudice and potential confusion of the issues — or in its own words, because delving into such events would necessitate a “mini trial.” The court also excluded evidence of the 1999 displacement hearing as hearsay and because the evidence would require a separate trial concerning that hearing. It did, however, permit Filar to introduce a document in which the Board, before officially denying her grievance, briefly mentioned the hearing. And over Filar’s objection, the district court allowed the Board to introduce evidence of the comparators’ and her performance evaluations dating back to 1992 and forbade Filar from discussing the gap in the evaluations that occurred due to her displacement in 1993-94. After the close of the evidence, the jury returned a verdict for the Board. Filar appeals, arguing she is entitled to a new trial based on the district court’s allegedly improper rulings on the three aforementioned evi-dentiary issues.
II.
We first address Filar’s contention that the district court wrongly excluded evidence of her 1993 displacement based upon Federal Rule of Evidence 403. Specifically, Filar claims that ruling permitted the Board to argue unhindered in its closing statement that because Garvey had hired her when she was 62-years-old in 1992, he was not discriminating against her because of her age when he displaced her in 1999. As with all of the district court’s evidentiary rulings, our review is for an abuse of discretion, and we give *610special deference to the court’s assessment of the balance between probative value and potential for unfair prejudice and confusion of the issues under Rule 403. Thompson v. City of Chicago, 472 F.3d 444, 453 (7th Cir.2006). We will reverse only if no reasonable person would agree with the trial court’s decisions. Maher v. City of Chicago, 547 F.3d 817, 823 (7th Cir.2008).
According to Filar’s offer of proof, she would have presented evidence that Garvey only hired her because Foreman High School was in a pinch for Polish bilingual teachers and that he displaced her a year later because the school’s acute need for teachers had abated. She also would have shown that Garvey hired two younger FTB teachers while she pursued her grievance. In addition, Filar claims she would have shown that the Board eventually found her displacement to be improper and ordered her reinstated. As the district court fairly perceived, exploring and resolving all of these points from over fifteen years earlier essentially would have required a trial-within-a-trial, which could have blurred the distinction between the key issues concerning the 1999 displacement and the collateral ones surrounding the 1993 displacement. The court concluded that the probative value — if any — of delving into the circumstances surrounding the 1993 displacement was substantially outweighed by the danger of confusing matters for the jury. This was a reasonable decision entitled to special deference on appeal.
Next, Filar contends that the district court abused its discretion in permitting the Board on the one hand to introduce evidence of her performance evaluations dating back to 1992 but at the same time precluding her from explaining that the absence of an evaluation for 1993 was due to the first displacement. She concedes that the last two evaluations before the 1999 displacement are relevant but argues that her earlier evaluations are irrelevant concerning whether Garvey discriminated against her on the basis of age. Her position is inconsistent, but not surprising: Filar received “superior” ratings the two years immediately preceding her 1999 displacement for her performance in a computer lab. However, she received lower marks in previous years when she was teaching in a traditional classroom setting. By comparison, Monaco and Rydberg, who regularly taught in traditional classrooms, received higher marks than Filar did when she was teaching in a similar traditional classroom. The Board understandably wished to use this evidence to show that Garvey had legitimate, non-discriminatory reasons for promoting Monaco and Rydberg to tenure-track positions and passing over Filar. Thus, the evidence was probative of a determining fact in the case. Moreover, the district court’s refusal to let Filar probe the gap in her ratings was consistent with its earlier ruling that evidence of the 1993 displacement should not be admitted. And there is no merit to Filar’s argument that the gap was somehow prejudicial to her: the mere absence of an evaluation for one year would not create any unfavorable inference against her. The district court did not abuse its discretion on this issue.
Finally, Filar contends that the district court’s exclusion of evidence concerning the 1999 grievance hearing was improper. Even assuming arguendo that is true, to obtain reversal Federal Rule of Civil Procedure 61 and Federal Rule of Evidence 103(a) require Filar to show that her substantial rights were affected. Peals v. Terre Haute Police Dep’t, 535 F.3d 621, 630 (7th Cir.2008); Cruz v. Town of Cicero, 275 F.3d 579, 589 (7th Cir.2001). She cannot do this because the substance *611and significance of the excluded evidence is not reflected in the record.
After a district court has made a ruling excluding evidence, Federal Rule of Evidence 103(a)(2) requires that the substance of the evidence be made known by an offer of proof unless it is apparent from the context. That did not happen here. Instead, after the district court sustained the Board’s objection to the line of questioning concerning the 1999 grievance hearing, Fi-lar’s counsel moved on, introducing the letter from the Board denying Filar’s grievance. Her counsel did not make an offer of proof regarding what the evidence of the hearing would have shown or how it was material. Nor is it apparent from the context. Before the Board objected, Filar had just begun testifying about the 1999 grievance hearing and the persons present. The district court could not discern from that snippet of testimony what transpired at the grievance hearing and what significance those events may have had; neither can we. Because we have no basis for concluding that Filar was prejudiced by any error the district court may have made in excluding the evidence, her argument on this issue fails. United States v. Rettenberger, 344 F.3d 702, 706 (7th Cir. 2003); Israel Travel Advisory Serv., Inc. v. Israel Identity Tours, Inc., 61 F.3d 1250, 1260 (7th Cir.1995). On appeal, Filar claims that the evidence would have shown the Board failed to follow its internal procedures at the hearing, which she says is indicative of pretext. But she forfeited the point by failing to comply with Rule 103(a)(2). United States v. Shay, 57 F.3d 126, 135 (1st Cir.1995); see Germano v. Int'l Profit Ass’n, Inc., 544 F.3d 798, 801 (7th Cir.2008). To review the issue now would rive the Rule.
III.
Because we see no abuse of discretion in the district court’s evidentiary rulings Fi-lar challenges, the judgment is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479418/ | ORDER
William Mereness, a Wisconsin inmate, was convicted of first-degree intentional homicide and sentenced to life in prison without possibility of release. After the state courts affirmed his conviction and denied his motion for post-conviction relief, Mereness filed a petition for a writ of habeas corpus. See 28 U.S.C. § 2254. A magistrate judge, presiding by consent, denied the petition but granted a certificate of appealability to determine whether a violation of Mereness’s Sixth Amendment right to confrontation prejudiced him at trial. We conclude that the state courts reasonably applied Supreme Court precedent in concluding that the Confrontation Clause violation was harmless, and therefore affirm the judgment.
Jennifer Mereness was bludgeoned to death at her Janesville, Wisconsin, home on November 22, 2002. Her estranged husband, William Mereness, became the prime suspect and the evidence against him was vastly circumstantial. Jennifer, a high school teacher, had left school that Friday around 11:00 a.m. due to illness; construction workers in her neighborhood testified that they saw a woman arrive at Jennifer’s house around 11:30 a.m. and then heard screams a few minutes later. Those workers then followed a man who fled the house on foot but could not catch up to him.
*614When the police questioned Mereness, he attempted to explain his whereabouts on November 22. Mereness was a district manager for Wal-Mart and did not keep regular office hours. He told the police officers that on Friday, November 22, he drove his teenage son to school and returned home to prepare for a telephone conference scheduled for that morning with his supervisor. At the last minute, she cancelled the conference call, and thus, he got an early start on a weekend trip to his cabin in Minocqua, Wisconsin. He claimed to have left Janesville around 10:00 a.m. To support this claim, he produced a receipt for a candy bar he purchased in Minocqua at 3:34 p.m. and asserted that it takes around 5 hours to drive from Janesville to Minocqua.
However, evidence presented at his trial refuted Mereness’s statements. His boss testified that she had cancelled them telephone conference days earlier and had been led to believe that Mereness would be inspecting the Wal-Mart in West Allis, Wisconsin, that day. A police officer testified as to the time it took to drive from Mereness’s home to the Wal-Mart in Mi-nocqua, where Mereness purchased the candy bar, and stated that it took him only 3]/2 hours. Furthermore, the state used Mereness’s cell phone records to establish that he was in Janesville in late morning on the day of the murder. In addition, Mereness’s brother, who had permission from Mereness to spend time alone with his son at the cabin that weekend, testified that Mereness told him on Thursday night that he would be joining them at the cabin on Friday. Mereness also asked his brother to purchase groceries with cash at a Minocqua grocery store between 4:00 and 5:00 p.m. on the day of the murder and to get a receipt, but then at noon, he told his brother that he did not need the groceries.
The state also presented evidence that shortly after the murder Mereness replaced a jacket matching that worn by the man seen leaving Jennifer’s house. Mereness had paid for the new jacket with a personal check, but afterward he returned to the store and insisted on getting the check back and paying with cash. Additionally, an expert witness testified that glass fragments recovered from Mereness’s car matched the glass in a broken basement window of Jennifer’s house.
But the most damning evidence presented at the trial was testimony concerning the statements Mereness made to his parents. A week after Jennifer’s death, Mereness left his parents’ house in Appleton, Wisconsin, and attempted to commit suicide by driving his car into a concrete wall. An Appleton detective, Peter Helein, who later interviewed Mereness’s mother testified that she had described Mereness as depressed and further that Mereness had confided to her two days before the wreck that he feared going to prison for Jennifer’s murder. The detective continued that on the day of the wreck, Mereness’s parents found him in a bathtub at their home with a roll of plastic wrap and a carving knife. According to the detective, Mereness had said he wanted to die, and when his mother asked if he killed Jennifer, he replied, “Yes, I’m really sorry.” Mereness’s mother had died before trial, so the judge allowed the prosecution to introduce her hearsay statements through the detective. Mereness sought to paint his mother as unreliable by introducing evidence that she had fought a life-long battle with mental illness that required constant medication and intermittent hospitalization.
But Mereness’s mother was not alone in the bathroom when he confessed. His father was also present, and at trial he testified that his wife had asked Mereness, *615“Did you do it?” and he replied, “Yeah, I did it.” His father said that he then left the bathroom because he hoped to insulate himself from the conversation so that he would be shielded from testifying against his son. After leaving the bathroom, he stated that the three of them discussed options in the kitchen. Mereness’s father testified that he shared with his son the three paths he might choose from: confess to the police, go to trial, or Mil himself. It was shortly after this discussion that Mereness drove his car into the concrete wall.
Before trial Mereness moved to exclude his mother’s statements on the grounds that they were inadmissible hearsay and that their use would violate his Sixth Amendment right to confrontation. The trial court, relying on Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), and State v. Weed, 263 Wis.2d 434, 666 N.W.2d 485, 494-95 (2003), concluded that the statements were admissible under Wisconsin’s hearsay rules and sufficiently reliable to satisfy the Confrontation Clause. Mereness renewed his constitutional claim in a posttrial motion, see Wis. Stat. § 974.02, and by then the Supreme Court had decided Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which holds that testimonial hearsay cannot be admitted at a criminal trial unless the declarant is unavailable and the defendant had an opportunity to cross-examine. The trial court agreed with Mereness that under Crawford the statements should not have been admitted but nevertheless concluded that the error was harmless because the state presented enough credible evidence beyond a reasonable doubt to sustain the conviction. The Wisconsin Court of Appeals, after reviewing this ruling as well as Mereness’s direct appeal, endorsed the trial judge’s analysis noting that the officer’s admitted testimony merely duplicated the untainted evidence offered by Mereness’s father. The Supreme Court of Wisconsin declined review.
In his § 2254 petition Mereness argued that the Crawford error was not harmless because the jury’s knowledge that he confessed to his mother would necessarily have had a substantial and injurious effect on the deliberations. Mereness repeats that argument, but our role, like that of the district court, is limited to ensuring that the state courts did not unreasonably apply clearly established federal law in rejecting the Crawford claim. See 28 U.S.C. § 2254(d)(1); Ray v. Boatwright, 592 F.3d 793, 796 (7th Cir.2010). The parties agree that the admission of the detective’s hearsay account of the exchange between Mereness and his mother violated the Confrontation Clause, see Crawford, 541 U.S. at 59, 124 S.Ct. 1354; United States v. Turner, 591 F.3d 928, 932 (7th Cir.2010), but confrontation errors are subject to harmless-error analysis, Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); United States v. Ghilarducci, 480 F.3d 542, 549 (7th Cir.2007). And when a state court has concluded that the constitutional error was harmless, the first, and perhaps only, question in the § 2254 proceeding is whether the state court reasonably applied Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), in making that determination. Mitchell v. Esparza, 540 U.S. 12, 18, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003); Johnson v. Acevedo, 572 F.3d 398, 404 (7th Cir.2009). If the state court reasonably applied the Chapman standard, “then the federal case is over and no collateral relief issues.” Johnson, 572 F.3d at 404. Here, the state appellate court adopted the trial judge’s analysis of Mereness’s posttrial motion and reasoned that the Crawford error should be deemed harmless if it was clear beyond a reasonable *616doubt that the error did not contribute to the verdict. The court, citing State v. Norman, 262 Wis.2d 506, 664 N.W.2d 97, 108-09 (Wis.2003), listed relevant factors to consider including the frequency of the error, whether the erroneously admitted evidence was corroborated or duplicated by other untainted evidence, and the overall strength of the state’s case. The state court’s reliance on these factors is consistent with Chapman and Van Arsdall, and although a state court need not cite the relevant Supreme Court cases to rule consistently with those standards, see Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002); Johnson v. Pollard, 559 F.3d 746, 752 n. 6 (7th Cir.2009), here the state court acknowledged that authority by citing state opinions that explicitly apply Chapman and Van Arsdall. See Weed, 666 N.W.2d at 488; Norman, 664 N.W.2d at 108-09.
The state court’s application of that precedent was likewise reasonable. Even without Mereness’s confession to his parents, the state marshaled significant evidence pointing to Mereness as the perpetrator, including the cell phone records that put Mereness in Janesville at the time of her death, glass fragments from the basement window that were found in his car, his strange replacement of a jacket matching the killer’s, and his discredited account of his whereabouts at the time of the murder and after. Moreover, the statements admitted from his mother were largely duplicated with the admission of his father’s account of the same conversation. That his father tried to avoid hearing that statement, and then shortly after advised his son that he could confess, go to trial, or kill himself, makes it clear that Mereness’s admission that he “did it” was, as the state court found, a confession to the murder. We agree that although the detective’s account of his mother’s statement was erroneously admitted, the state court’s conclusion that the error was harmless was a reasonable application of Chapman and Van Arsdall.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479420/ | ORDER
An Illinois court convicted Salvador Le-mus-Rodriguez of committing an aggravated sexual assault against his girlfriend’s teenage daughter. At the time, Lemus-Rodriguez, a Mexican citizen, was in the United States unlawfully after two prior convictions for unlawful reentry, 8 U.S.C. § 1326(a). Federal authorities then, for the third time, charged him with violating § 1326(a). He pleaded guilty, and at sentencing the district court increased his offense level by 16 after concluding that, before he was last deported, Lemus-Rod-riguez had incurred a firearm conviction that qualified as a crime of violence. See U.S.S.G. § 2L1.2(b)(l)(A)(ii). The court sentenced him to 70 months’ imprisonment, with the first 35 months to run concurrently with the Illinois sentence for aggravated sexual assault.
On appeal Lemus-Rodriguez argues that it was error to apply the 16-level increase because, in his view, the Sentencing Commission “failed to fulfill its ‘institutional role’ when it prescribed” the upward adjustment. We have rejected this very argument; sentencing courts must use the guidelines as written to calculate the guidelines range, and then, as a matter of discretion, the court may impose a sentence that is outside the range established by the Sentencing Commission. See, e.g., United States v. Kirkpatrick, 589 F.3d 414, 416 (7th Cir.2009); United States v. Parr, 545 F.3d 491, 504 (7th Cir.2008). The district court was free to conclude that giving effect to the 16-level increase would, on the particular facts of this case, produce an unwarranted prison term. See United States v. Aguilar-Huerta, 576 F.3d 365, 367-68 (7th Cir.2009). But Lemus-Rodriguez did not ask the sentencing court to exercise that discretion, nor did he say anything at all about the “parsimony principle” which, according to his appellate brief, was his “main argument” at sentencing.
What Lemus-Rodriguez in fact argued at sentencing is that his Illinois conviction for reckless discharge of a firearm, which served as the basis for applying the 16-level increase, is not a crime of violence. He has abandoned this argument on appeal, but the government candidly concedes that prosecutors were wrong in persuading the sentencing court to rely on United States v. Newbern, 479 F.3d 506 (7th Cir.2007), to reject the defendant’s contention. The government now acknowledges that the Illinois offense of reckless discharge of a firearm is not a crime of violence and urges us to remand the case for resentencing.
In Newbem we analyzed the definition of crime of violence in U.S.S.G. § 4B 1.2(a)(2) and concluded that reckless discharge of a firearm properly satisfied *618that definition’s residual clause because the offense “presents a ‘serious potential risk of physical injury to another.’ ” 479 F.Sd at 509 (quoting § 4B1.2(a)(2)). But the district court should not have relied on that decision because, unlike § 4B1.2, the relevant definition for “crime of violence” in § 2L1.2 is narrower and does not incorporate the broad residual clause found in § 4B1.2. See United States v. Jaimes-Jaimes, 406 F.3d 845, 849 (7th Cir.2005). Moreover, by the time the district court had sentenced Lemus-Rodriguez, the Supreme Court had decided Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). In the aftermath of Begay, we questioned the continued viability of Newbem and concluded that it no longer is possible to characterize an offense as a crime of violence solely because it “poses a serious risk of physical injury to another.” United States v. Smith, 544 F.3d 781, 783-84 (7th Cir.2008).
More recently we have held that, in light of Begay, a crime for which the mental state is limited to recklessness cannot qualify as a crime of violence, United States v. Woods, 576 F.3d 400, 412-13 (7th Cir.2009), and we have applied this rule to conclude that the Illinois offense of reckless discharge of a firearm is not a crime of violence under § 4B1.2, United States v. Gear, 577 F.3d 810, 812 (7th Cir.2009). Based on this precedent, the district court’s decision was an error that requires resentencing.
Lemus-Rodriguez’s sentence is VACATED, and the case is REMANDED for resentencing. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479422/ | ORDER
Randall Radunz, a former Wisconsin inmate, claims in this lawsuit under 42 U.S.C. § 1983 that the sheriff of Pierce County, Wisconsin, and three of the sheriffs subordinates jailed him unlawfully on a motion to revoke his probation and then denied him necessary medical care while he was in their custody. The district court dismissed the suit on the ground that the complaint fails to state a claim that these defendants violated Radunz’s rights under the Eighth and Fourteenth Amendments. See 28 U.S.C. § 1915(e)(2)(B)(ii); Fed. R.CivP. 8(a); DeWalt v. Carter, 224 F.3d 607, 611 (7th Cir.2000). We agree.
In May 2003, while Radunz was on probation for a weapons offense, he became a suspect in a homicide investigation. His probation officer, a state employee, arranged for Radunz to be taken into custody when that investigation uncovered drugs and weapons on his property. Ra-dunz was held in the Pierce County jail while awaiting the revocation proceedings, and after 69 days a state administrative law judge revoked his probation and sentenced him to a two-year prison term.
Radunz’s operative complaint — his third try after the district court rejected the first two as inadequate under Federal Rule of Civil Procedure 8 — focuses on two aspects of the time he spent in the county jail before his revocation hearing. First, he complains that he was held too long in the county facility while awaiting his hearing and that he should have been released while the revocation matter was pending. Second, he claims that the medical care he received at the jail was inadequate. In June 2003, he explains, he notified an unidentified guard that he was feeling “real bad,” but no one came to investigate despite the guard’s promise to relay the message. Two days later, Radunz continues, he “lost his balance and fell backwards” as he was standing up to take an unspecified medication. He hit his head, and when he regained consciousness, he told a sergeant that he could not feel his hands. He also says that the defendants knew “he had been a diabetic for some 25 years” but ignored requests for medical attention, yet other than alleging that he was refused extra blankets, he in fact admits in his *620complaint that his diabetes was treated by diet and medication and monitored by two blood-sugar checks a day. And that’s all the complaint reveals about the medical care Radunz received while in jail. He adds that he required surgery on his back and neck more than a year later, but he does not allege that the surgery was linked to the fall.
In dismissing the lawsuit, the district court reasoned that Radunz had failed to allege that the named defendants had any role in his probation revocation or that they were deliberately indifferent to his medical needs. We review the district court’s decision de novo and assume the facts in Radunz’s complaint to be true. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 820-821 (7th Cir.2009). Because the complaint, even when viewed in the most favorable light, fails to give the defendants notice of a claim that is “plausible on its face,” we affirm the decision of the district court. See Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
The nature of Radunz’s argument regarding his detention is difficult to pin down. If his theory is that he was prejudiced by the lapse of time before his hearing, then his claim is barred by Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), because he never successfully challenged the validity of his probation revocation. See, e.g., Johnson v. Litscher, 260 F.3d 826, 831 (7th Cir.2001). On the other hand, if Radunz instead argues that he was held beyond the time normally allowed under Wisconsin law for a probationer to be held in a county jail pending revocation, see Wis. Stat. § 302.335(2)(b), (3); State ex rel. Jones v. Div. Adm’r, Wis. Div. of Hearings & Appeals, 195 Wis.2d 669, 536 N.W.2d 213, 214 (1995), then the claim fails because § 1983 applies only to violations of federal law. See Thompson v. City of Chicago, 472 F.3d 444, 454 (7th Cir.2006).
But more fundamentally, Radunz’s complaint fails to link the named defendants to the timing of his revocation proceedings. The state of Wisconsin scheduled the revocation proceedings and an administrative law judge ultimately decided to revoke his probation, and Radunz does not allege that the defendants did, or even could have, affected those proceedings. A plaintiff cannot recover under § 1983 without establishing that the defendants were personally involved in the alleged constitutional violation, see Knight v. Wiseman, 590 F.3d 458, 462-63 (7th Cir.2009); Johnson v. Snyder, 444 F.3d 579, 583 (7th Cir.2006), and thus the district court correctly concluded that he failed to state a due-process violation.
Regarding the claim of deliberate indifference, Radunz pleaded himself out of court by alleging facts which rule out his contention that his medical issues were ignored. See Edwards v. Snyder, 478 F.3d 827, 830 (7th Cir.2007). To prevail on an Eighth Amendment claim for the denial of medical care, a prisoner must establish that the defendants were intentionally or recklessly indifferent to an objectively serious medical condition. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir.2008). But Ra-dunz identifies only two medical issues, the fall and his diabetes, and his description of the way jailers responded to those conditions belies a characterization of deliberate indifference. Radunz admits being hospitalized immediately after he fell and struck his head, and he also acknowledges that he received regular medication, blood-sugar checks, and a special diet in response to his diabetes. These admissions make it clear that, rather than being ignored, Ra-dunz received prompt and adequate medi*621cal treatment. See, e.g., Borello v. Allison, 446 F.3d 742, 748 (7th Cir.2006); Gutierrez v. Peters, 111 F.3d 1364, 1374 (7th Cir.1997).
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479426/ | ORDER
David Brown pleaded guilty to one count of conspiracy to distribute more than 50 grams of cocaine base. See 21 U.S.C. § 846. At Brown’s sentencing hearing the government moved to reduce his sentence below the life-time statutory minimum to reflect the value of his assistance in the investigation and prosecution of other matters. See 18 U.S.C. § 3553(e). The district court granted that motion and sentenced Brown to 244 months’ imprisonment, but refused to consider other mitigating factors to further reduce his sentence. Brown appeals, but his appointed counsel has concluded that his appeal is frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We invited Brown to respond to counsel’s motion, but he has declined to do so. See Cir. R. 51(b). We limit our review to the potential issue identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Counsel initially advises that Brown does not want his guilty plea vacated, and thus properly omits any discussion of the adequacy of the plea colloquy or the volun-*623tariness of the plea. See United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002).
The only potential issue counsel identifies is whether Brown could challenge the court’s refusal to further reduce his sentence for reasons other than his substantial assistance. But we agree that this contention would be frivolous. As counsel notes, once a district court decides that a defendant’s cooperation justifies a sentence below the statutory floor, see 18 U.S.C. § 3553(e), the court may not rely upon other mitigating factors in § 3553(a) to further reduce the sentence. United States v. Johnson, 580 F.3d 666, 672-74 (7th Cir.2009), cert denied, — U.S. -, 130 S.Ct. 1115, — L.Ed.2d - (2010).
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/8479400/ | PER CURIAM: *
The attorney appointed to represent Kenneth Martin Apgar 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). Apgar has filed a response, in which he makes a request for appointment of substitute counsel. Our independent review of the record, counsel’s brief, and Apgar’s response discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANT-
ED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2. Ap-gar’s motion for appointment of substitute counsel is DENIED. Cf. United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998).
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/8479402/ | PER CURIAM: *
The Federal Public Defender appointed to represent Eudocio Salazar-Quiroz has moved for leave to withdraw and has filed a brief and supplemental letter brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Salazar-Quiroz has not filed a response. He has recently been released *411from imprisonment and removed from the United States.
Our independent review of the record and counsel’s briefs discloses no nonfrivo-lous 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 in part as frivolous, see 5th Cir. R. 42.2, and in part as moot, see United States v. Rosenbaum-Alanis, 483 F.3d 381, 383 (5th Cir.2007).
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/8479407/ | PER CURIAM: *
The Federal Public Defender appointed to represent Juan Gonzales 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). Gonzales has filed a response. Our independent review of the record, counsel’s brief, and Gonzales’s response 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 APPEALS ARE DISMISSED. See 5th Cíe. 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/8479409/ | ORDER
The last time this case was before us, we concluded that appellant Vernon D. Woods was entitled to be resentenced, because the district court had erred when it concluded that Woods was a career offender for purposes of § 4B1.1 of the United States Sentencing Guidelines. See United States v. Woods, 576 F.3d 400 (7th Cir.2009) (Woods I). In keeping with our order, the district court held a second sentencing hearing on remand, after which it imposed a sentence of 144 months’ imprisonment and six years’ supervised release on his two drug distribution charges, and a concurrent sentence of 120 months for possessing a firearm and ammunition as a convicted felon. Woods’s original sentence had been 192 months’ imprisonment, and so his first appeal had the effect of shaving four years off of his overall sentence. Nevertheless, the court’s sentence was considerably higher than the 63-78 month range that the guidelines recommended, once the career-criminal provisions were set aside.
Woods has appealed again, asserting that the district court failed to give an adequate explanation for choosing a sentence so much higher than the top of the guidelines range. He infers, from that lack of explanation, that the district court failed to take into account the risk that its sentence could lead to unwarranted sentencing disparities among similar defendants. See 18 U.S.C. § 3553(a)(6). Our review of the sentencing record satisfies us, however, that the district court acted within its discretion when it chose a proper sentence for Woods, and that it committed no procedural error requiring reversal. We therefore affirm.
There is little more that we need add. As we explained in United States v. Moreno-Padilla, 602 F.3d 802 (7th Cir.2010):
Our review of sentencing decisions proceeds in two steps.... First, we ensure that the district court did not commit any “significant procedural error,” examples of which include failing to calculate, or improperly calculating, the applicable Guidelines range; treating the Guidelines as mandatory; or failing to consider the 18 U.S.C. § 3553(a) factors .... Once we are convinced that the sentencing judge followed correct procedure, we then consider the substantive reasonableness of the sentence.... We presume that within-Guidelines sentences are reasonable, ... and we re*602view sentences only for abuse of discretion. ...
602 F.3d at 810 (citations omitted). In addition, the court “must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” Gall v. United States, 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), citing Rita v. United States, 551 U.S. 338, 356-57, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007).
As we noted, Woods’s primary argument in this appeal is that the district court failed to offer an adequate explanation for why it chose a sentence (144 months) that was nearly twice the top of the recommended guidelines range (78 months). Such a sentence, he continues, violates the principle expressed in § 3553(a)(6) that unwarranted disparities among similar defendants must be avoided. We reject both of these propositions. The district court began the resentencing hearing by allowing both Woods and the government to present arguments about what sentence would be appropriate. The government urged the coui't to reinstate the 192-month sentence it had originally imposed, in light of the serious nature of the drug and gun charges Woods faced, the fact that his criminal history included four felony drug-convictions as well as the conviction for involuntary manslaughter (which we discussed in Woods I), and the likelihood of recidivism. Woods responded that 192 months was well in excess of any sentence that met the requirements of § 3553(a). He pointed out that his prior drug convictions all involved small quantities. He also brought to the court’s attention the fact that, since his original sentencing, he had earned his GED, completed drug treatment and education programs, and had not received any disciplinary tickets while incarcerated. Finally, he argued that his dysfunctional upbringing was a reason for a sentence within the revised guidelines range.
The court’s comments show that it took all of this information into account. It found — contrary to Woods’s argument— that his criminal history was quite serious. It noted that despite Woods’s numerous prior drug convictions, he had proved thus far to be incorrigible. The fact that Woods also possessed a loaded .357 Magnum in connection with his current offense also supported a higher sentence, in the court’s view. On a number of occasions, Woods had violated the conditions of his state parole and his parole had been revoked. Summarizing, the court said “I must deter this defendant, and the only way is imprisonment for a substantial period of time, and a light sentence would have no deterrent effect for one with his record.” The court acknowledged that Woods had used his time in prison well and that his upbringing had been difficult, but that these considerations did not override the need to protect society from him and to deter him from committing future crimes. It specifically noted that the sentence it chose was lower than the one the government had recommended, but significantly higher than the recommended guidelines sentence.
From a procedural standpoint, this explanation was entirely sufficient to allow this court to follow the district court’s reasoning. Any disparity between Woods’s sentence and that of other defendants facing similar charges was justified by Woods’s own characteristics. Woods is correct that it would be wise for sentencing courts to consider the guidelines when they determine how much incremental punishment should be applied, United States v. Kirkpatrick, 589 F.3d 414, 416 (7th Cir.2009), but the district court is not required to express its conclusions in those terms. Finally, we see nothing substantively unreasonable about the sentence the court chose.
*603We therefore AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479411/ | ORDER
On May 11, 2009, we vacated Gregory Davis’s 210-month sentence and reman-dedthe case to the district court for resen-tencing in light of Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). United States v. Davis, 330 Fed.Appx. 111 (7th Cir.2009). On remand, the sentencing judge ruled that Davis’s guideline range would remain at 210-262 months (the range prescribed by the 2002 guidelines in effect at the time of his initial sentencing) pursuant to 18 U.S.C. § 3742(g)(1), and imposed a 200-month sentence. Davis appeals.
Davis first argues that the application of 18 U.S.C. § 3742(g)(1) to crack cocaine offenders who were sentenced pri- or to the amendment of the guidelines violates the Eighth Amendment’s ban on cruel and unusual punishment. This argument fails. A sentence imposed for a non-capital felony conviction that falls “within the legislatively prescribed limits will not be considered disproportionate unless the sentencing court abused its discretion.” United States v. Vasquez, 966 F.2d 254, 261 (7th Cir.1992). Davis’s sentence fell within legislatively prescribed limits— § 3742(g)(1) provides that in conducting a resentencing hearing, district courts “must apply the guidelines as they existed at the time of [the defendant’s] first sentencing.” United States v. Romero, 528 F.3d 980, 981 (7th Cir.2008). Section 3742(g)(l)’s charge to apply the guidelines in effect on the date of the previous sentencing support the district court’s sentence and militate against Davis’s Eighth Amendment claim.
Davis challenges the reasonableness of his sentence on similar grounds, arguing that it was improper for the district court to use the 2002 guideline range given that the guidelines have been subsequently amended by the Sentencing Commission. This was also Davis’s primary argument to the district court at his resen-tencing — Davis contended that the Sentencing Commission expressed a policy judgment in 2007 that the crack/cocaine powder disparity should be lessened, and that the district court should have taken that into account in reaching a sentence.
We cannot tell from the district court’s explanation for the sentence whether the court actually considered Davis’s argument. While Davis’s sentence was 10 months below the 2002 advisory guidelines range and is thus presumed reasonable, United States v. Poetz, 582 F.3d 835, 837 (7th Cir.2009), the district judge did not provide a sufficient explanation to allow us to meaningfully review the sentence. Remand for resentencing is therefore warranted. See United States v. Harris, 567 F.3d 846, 854-55 (7th Cir.2009) (insufficient explanation for sentencing decision precluded affirmance); United States v. Miranda, 505 F.3d 785, 795-96 (7th Cir.*6062007) (same); United States v. Cunningham, 429 F.3d 673, 679-80 (7th Cir.2005) (same).
The district court imposed Davis’s sentence without providing a meaningful explanation as to why that sentence was being given. The district court stated:
I have ... determined the guideline range to be 210 to 262 months. The original sentence imposed by the Court was 210 months. The matter is before the Court for reconsideration. I have heard what the defendant has had to say and what the witnesses have said and the arguments of counsel. The guidelines are not mandatory. They do serve as guides. So in looking at the entire matter, all of the information before the court today, the sentence imposed by the Court is 200 months — not 210 months — but 200 months which the Court finds to be a fair and appropriate sentence given the totality of the information before the Court.
This explanation gives no indication how, if at all, the court exercised its discretion in considering Davis’s argument regarding the 2007 crack/powder disparity guideline amendments. While a district court need not discuss every single § 3553(a) factor or address every single argument from a defendant, it does have to provide reasons for its sentencing decision and address the defendant’s principal arguments that merit discussion. Cunningham, 429 F.3d at 679. Davis’s argument was not one that was “so clearly without merit that it could be passed over without comment.” Harris, 567 F.3d at 854; see United States v. Demaree, 459 F.3d 791, 795 (7th Cir.2006) (“[W]hen the Sentencing Commission changes a guideline, it does so for a reason; and since it is a body expert in criminal punishments, its reason is entitled to the serious consideration of the sentencing judge.”).
Instead of directly addressing Davis’s argument, the district court noted that the guidelines were advisory, recited the generic language of the § 3553(a) factors, and then announced a 200-month sentence based on “the totality of the information before the Court.” As we stated in Cunningham, “a rote statement that the judge considered all relevant factors will not always suffice.” 429 F.3d at 679. And we have vacated and remanded other cases with similarly conclusory sentencing explanations, finding that they precluded meaningful appellate review. See, e.g., United States v. Villegas-Miranda, 579 F.3d 798, 802 (7th Cir.2009) (“Although the district court listened at length to [defendant’s argument], we cannot take on faith that it adequately considered the argument where it passed it over in silence.”) (internal quotes omitted); Miranda, 505 F.3d at 796 (“We cannot tell from the district court’s comments whether the court made that individualized analysis of Miranda’s factual and legally supported sentencing arguments.”).
Also complicating matters is the fact the court stated that it considered United States v. Welton, 583 F.3d 494 (7th Cir.2009), which has been overruled by our holding in United States v. Corner. 598 F.3d 411, 416 (7th Cir.2010) (en banc). Because the district court did not explain how the cases it cited were influencing its decision, we cannot know from this record whether Welton played a role in its reasoning. The possibility that Welton may have influenced the court also militates in favor of remand.
We express no opinion as to the length of the sentence given to Davis; our concern is solely with the fact that the explanation given for the sentence precludes meaningful appellate review. It may well be the case that the district court disagreed with the crack/powder disparity re-*607fleeted in the 2002 guidelines, but agreed with the government’s argument that other aggravating factors, such as Davis’s criminal history, warranted a 200-month sentence. But there is no way to tell that from the record. Here, like in Cunningham, “[t]he inadequate explanation for the sentence precludes our affirmance.” 429 F.3d at 680.
Davis’s sentence is VACATED and the case is REMANDED for resentencing. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479419/ | ORDER
An Illinois court convicted Salvador Le-mus-Rodriguez of committing an aggravated sexual assault against his girlfriend’s teenage daughter. At the time, Lemus-Rodriguez, a Mexican citizen, was in the United States unlawfully after two prior convictions for unlawful reentry, 8 U.S.C. § 1326(a). Federal authorities then, for the third time, charged him with violating § 1326(a). He pleaded guilty, and at sentencing the district court increased his offense level by 16 after concluding that, before he was last deported, Lemus-Rod-riguez had incurred a firearm conviction that qualified as a crime of violence. See U.S.S.G. § 2L1.2(b)(l)(A)(ii). The court sentenced him to 70 months’ imprisonment, with the first 35 months to run concurrently with the Illinois sentence for aggravated sexual assault.
On appeal Lemus-Rodriguez argues that it was error to apply the 16-level increase because, in his view, the Sentencing Commission “failed to fulfill its ‘institutional role’ when it prescribed” the upward adjustment. We have rejected this very argument; sentencing courts must use the guidelines as written to calculate the guidelines range, and then, as a matter of discretion, the court may impose a sentence that is outside the range established by the Sentencing Commission. See, e.g., United States v. Kirkpatrick, 589 F.3d 414, 416 (7th Cir.2009); United States v. Parr, 545 F.3d 491, 504 (7th Cir.2008). The district court was free to conclude that giving effect to the 16-level increase would, on the particular facts of this case, produce an unwarranted prison term. See United States v. Aguilar-Huerta, 576 F.3d 365, 367-68 (7th Cir.2009). But Lemus-Rodriguez did not ask the sentencing court to exercise that discretion, nor did he say anything at all about the “parsimony principle” which, according to his appellate brief, was his “main argument” at sentencing.
What Lemus-Rodriguez in fact argued at sentencing is that his Illinois conviction for reckless discharge of a firearm, which served as the basis for applying the 16-level increase, is not a crime of violence. He has abandoned this argument on appeal, but the government candidly concedes that prosecutors were wrong in persuading the sentencing court to rely on United States v. Newbern, 479 F.3d 506 (7th Cir.2007), to reject the defendant’s contention. The government now acknowledges that the Illinois offense of reckless discharge of a firearm is not a crime of violence and urges us to remand the case for resentencing.
In Newbem we analyzed the definition of crime of violence in U.S.S.G. § 4B 1.2(a)(2) and concluded that reckless discharge of a firearm properly satisfied *618that definition’s residual clause because the offense “presents a ‘serious potential risk of physical injury to another.’ ” 479 F.Sd at 509 (quoting § 4B1.2(a)(2)). But the district court should not have relied on that decision because, unlike § 4B1.2, the relevant definition for “crime of violence” in § 2L1.2 is narrower and does not incorporate the broad residual clause found in § 4B1.2. See United States v. Jaimes-Jaimes, 406 F.3d 845, 849 (7th Cir.2005). Moreover, by the time the district court had sentenced Lemus-Rodriguez, the Supreme Court had decided Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). In the aftermath of Begay, we questioned the continued viability of Newbem and concluded that it no longer is possible to characterize an offense as a crime of violence solely because it “poses a serious risk of physical injury to another.” United States v. Smith, 544 F.3d 781, 783-84 (7th Cir.2008).
More recently we have held that, in light of Begay, a crime for which the mental state is limited to recklessness cannot qualify as a crime of violence, United States v. Woods, 576 F.3d 400, 412-13 (7th Cir.2009), and we have applied this rule to conclude that the Illinois offense of reckless discharge of a firearm is not a crime of violence under § 4B1.2, United States v. Gear, 577 F.3d 810, 812 (7th Cir.2009). Based on this precedent, the district court’s decision was an error that requires resentencing.
Lemus-Rodriguez’s sentence is VACATED, and the case is REMANDED for resentencing. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479421/ | ORDER
Randall Radunz, a former Wisconsin inmate, claims in this lawsuit under 42 U.S.C. § 1983 that the sheriff of Pierce County, Wisconsin, and three of the sheriffs subordinates jailed him unlawfully on a motion to revoke his probation and then denied him necessary medical care while he was in their custody. The district court dismissed the suit on the ground that the complaint fails to state a claim that these defendants violated Radunz’s rights under the Eighth and Fourteenth Amendments. See 28 U.S.C. § 1915(e)(2)(B)(ii); Fed. R.CivP. 8(a); DeWalt v. Carter, 224 F.3d 607, 611 (7th Cir.2000). We agree.
In May 2003, while Radunz was on probation for a weapons offense, he became a suspect in a homicide investigation. His probation officer, a state employee, arranged for Radunz to be taken into custody when that investigation uncovered drugs and weapons on his property. Ra-dunz was held in the Pierce County jail while awaiting the revocation proceedings, and after 69 days a state administrative law judge revoked his probation and sentenced him to a two-year prison term.
Radunz’s operative complaint — his third try after the district court rejected the first two as inadequate under Federal Rule of Civil Procedure 8 — focuses on two aspects of the time he spent in the county jail before his revocation hearing. First, he complains that he was held too long in the county facility while awaiting his hearing and that he should have been released while the revocation matter was pending. Second, he claims that the medical care he received at the jail was inadequate. In June 2003, he explains, he notified an unidentified guard that he was feeling “real bad,” but no one came to investigate despite the guard’s promise to relay the message. Two days later, Radunz continues, he “lost his balance and fell backwards” as he was standing up to take an unspecified medication. He hit his head, and when he regained consciousness, he told a sergeant that he could not feel his hands. He also says that the defendants knew “he had been a diabetic for some 25 years” but ignored requests for medical attention, yet other than alleging that he was refused extra blankets, he in fact admits in his *620complaint that his diabetes was treated by diet and medication and monitored by two blood-sugar checks a day. And that’s all the complaint reveals about the medical care Radunz received while in jail. He adds that he required surgery on his back and neck more than a year later, but he does not allege that the surgery was linked to the fall.
In dismissing the lawsuit, the district court reasoned that Radunz had failed to allege that the named defendants had any role in his probation revocation or that they were deliberately indifferent to his medical needs. We review the district court’s decision de novo and assume the facts in Radunz’s complaint to be true. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 820-821 (7th Cir.2009). Because the complaint, even when viewed in the most favorable light, fails to give the defendants notice of a claim that is “plausible on its face,” we affirm the decision of the district court. See Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
The nature of Radunz’s argument regarding his detention is difficult to pin down. If his theory is that he was prejudiced by the lapse of time before his hearing, then his claim is barred by Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), because he never successfully challenged the validity of his probation revocation. See, e.g., Johnson v. Litscher, 260 F.3d 826, 831 (7th Cir.2001). On the other hand, if Radunz instead argues that he was held beyond the time normally allowed under Wisconsin law for a probationer to be held in a county jail pending revocation, see Wis. Stat. § 302.335(2)(b), (3); State ex rel. Jones v. Div. Adm’r, Wis. Div. of Hearings & Appeals, 195 Wis.2d 669, 536 N.W.2d 213, 214 (1995), then the claim fails because § 1983 applies only to violations of federal law. See Thompson v. City of Chicago, 472 F.3d 444, 454 (7th Cir.2006).
But more fundamentally, Radunz’s complaint fails to link the named defendants to the timing of his revocation proceedings. The state of Wisconsin scheduled the revocation proceedings and an administrative law judge ultimately decided to revoke his probation, and Radunz does not allege that the defendants did, or even could have, affected those proceedings. A plaintiff cannot recover under § 1983 without establishing that the defendants were personally involved in the alleged constitutional violation, see Knight v. Wiseman, 590 F.3d 458, 462-63 (7th Cir.2009); Johnson v. Snyder, 444 F.3d 579, 583 (7th Cir.2006), and thus the district court correctly concluded that he failed to state a due-process violation.
Regarding the claim of deliberate indifference, Radunz pleaded himself out of court by alleging facts which rule out his contention that his medical issues were ignored. See Edwards v. Snyder, 478 F.3d 827, 830 (7th Cir.2007). To prevail on an Eighth Amendment claim for the denial of medical care, a prisoner must establish that the defendants were intentionally or recklessly indifferent to an objectively serious medical condition. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir.2008). But Ra-dunz identifies only two medical issues, the fall and his diabetes, and his description of the way jailers responded to those conditions belies a characterization of deliberate indifference. Radunz admits being hospitalized immediately after he fell and struck his head, and he also acknowledges that he received regular medication, blood-sugar checks, and a special diet in response to his diabetes. These admissions make it clear that, rather than being ignored, Ra-dunz received prompt and adequate medi*621cal treatment. See, e.g., Borello v. Allison, 446 F.3d 742, 748 (7th Cir.2006); Gutierrez v. Peters, 111 F.3d 1364, 1374 (7th Cir.1997).
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479433/ | MEMORANDUM **
Intervenor-Appellant Freddie Fuiava’s petition for habeas corpus is currently pending in state court. The state court partially granted Fuiava’s motion under California Penal Code § 1054.9 to take additional discovery in support of his petition. Fuiava then moved to intervene in this closed case in the Central District of California seeking modification of any protective order covering the discovery generated during the life of this case. After the district court denied his motion without stating a reason for its denial, a panel of this circuit remanded to give the district court an opportunity to state the reasons for its ruling. See Thomas v. County of L.A., 275 Fed.Appx. 664 (9th Cir.2008) (citing Foltz v. State Farm Mut Auto. Ins. Co., 331 F.3d 1122 (9th Cir.2003)).
On remand, the district court again denied the motion to intervene, concluding that Fuiava had not articulated how access to the evidence he sought would be relevant to his collateral litigation. The district court further concluded that the reliance interest of the County in maintaining the protective order outweighed the policy of avoiding duplicative discovery. Fuiava appealed and we now vacate the district court’s order because the motion to intervene to modify the protective order is moot.
In response to the panel’s inquiries, neither party has identified a protective order that covers the discovery in this case. Fuiava’s motion to intervene seeking modification of a protective order is therefore moot. No protective order prevents Fuia-va from obtaining the discovery he seeks.
The district court’s order denying Fuia-va’s renewed motion to intervene to modify the protective order is VACATED and the case is REMANDED with directions to dismiss the motion as moot.
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/8479438/ | ORDER
In light of the Supreme Court’s decision in Hertz v. Friend, 559 U.S. -, 130 S.Ct. 1181, — L.Ed.2d - (2010), the order of the district court granting plaintiffs motion to remand is vacated, and the case is remanded for further proceedings consistent with Hertz. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479439/ | MEMORANDUM **
Carlos Hernandez-Amaya, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen based on ineffective assistance of counsel. Our jurisdiction is governed by 8 U.S.C. § 1252. Reviewing for abuse of discretion, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003), we deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying Hernandez-Amaya’s motion to reopen because the motion was filed more than two years after the BIA’s January 6, 2005, order dismissing the underlying appeal, see 8 C.F.R. § 1003.2(c)(2), and Hernandez-Amaya failed to demonstrate that he acted with the due diligence required for equitable tolling, see Iturribama, 321 F.3d at 897 (equitable tolling available “when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence”); see also Ghahremani v. Gonzales, 498 F.3d 993, 999 (9th Cir.2007) (limita*765tions period may be tolled until petitioner “definitively learns” of counsel’s defectiveness).
We lack jurisdiction to review the BIA’s decision not to invoke its sua sponte authority to reopen proceedings. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002).
We lack jurisdiction to review Hernandez-Amaya’s remaining contention because he failed to raise it before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479441/ | MEMORANDUM **
Varinder Singh Cheema, a native and citizen of India, petitions pro se for review of a Board of Immigration Appeals (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir.2008), and we grant the petition for review.
Substantial evidence does not support the agency’s adverse credibility determination because the discrepancy between Cheema’s testimony and his asylum application with respect to the length of his 1996 detention did not enhance his claim, see Singh v. Ashcroft, 362 F.3d 1164, 1171 (9th Cir.2004), and the discrepancy was not accompanied by other indications of dishonesty such as a pattern of clear and pervasive inconsistency or contradiction, see Don v. Gonzales, 476 F.3d 738, 742 (9th Cir.2007) (holding discrepancies that do not enhance a claim may be considered when accompanied by other indications of dishonesty).
Further, even if substantial evidence supports the agency’s alternate finding that Cheema was not persecuted on account of a protected ground with respect to his 1994 arrest, the agency failed to consider whether Cheema’s 1996 arrest was on account of a protected ground, and must be given the opportunity to do so in the first instance. See INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).
Accordingly, we grant the petition for review, and remand to the BIA for further proceedings in which Cheema’s testimony shall be deemed credible. See Soto-Olarte v. Holder, 555 F.3d 1089, 1095-96 (9th Cir.2009); see also Ventura, 537 U.S. at 16-18,123 S.Ct. 353.
PETITION FOR REVIEW GRANTED; REMANDED.
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/8479443/ | MEMORANDUM **
Jose Victor Quiroa-Arias appeals from his guilty-plea conviction and 46-month sentence for illegal reentry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Quiroa-Arias’ counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided Qui-roa-Arias 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/8479436/ | MEMORANDUM **
Erika Calderon, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ order dismissing her appeal from an immigration judge’s (“IJ”) decision denying her application for asylum, withholding of removal and relief under Convention Against Torture. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence findings of fact, Hoxha v. Ashcroft, 319 F.3d 1179, 1182, n. 4 (9th Cir.2003), and de novo claims of due process violations, Sanchez-Cruz v. INS, 255 F.3d 775, 779 (9th Cir.2001). We deny in part and dismiss in part the petition for review.
Because Calderon failed to challenge the agency’s denial of asylum, withholding of removal, and CAT relief, these claims are waived. See Martinez-Setrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (issues not raised in the opening brief are deemed waived).
We reject Calderon’s claim that the IJ violated her due process rights by not considering all of the country condition evidence because she received a full and fair hearing. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring legal error and prejudice to prevail on a due process challenge).
We lack jurisdiction to review Calderon’s contention that the IJ violated her due process rights by not forwarding her asylum application to the State Department because she failed to raise this issue before the agency. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).
*722PETITION FOR REVIEW DENIED in part and 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/8479437/ | ORDER
In light of the Supreme Court’s decision in Hertz v. Friend, 559 U.S. -, 130 S.Ct. 1181, — L.Ed.2d - (2010), the order of the district court granting plaintiffs motion to remand is vacated, and the case is remanded for further proceedings consistent with Hertz. | 01-04-2023 | 11-05-2022 |
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