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https://www.courtlistener.com/api/rest/v3/opinions/8479440/ | 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/8479442/ | 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/8479444/ | 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/8479445/ | MEMORANDUM **
Nova Wakarry Hiu, native and citizen of Indonesia, petitions for review of the Board of Immigration Appeals’ order dismissing her appeal from an immigration judge’s decision denying her application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. Reviewing for substantial evidence, Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.2009), we dismiss in part and deny in part the petition for review.
We lack jurisdiction to review the agency’s determination that Hiu’s asylum application was untimely because that finding was based on disputed facts. See Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir.2007) (per curiam). Additionally, we reject Hiu’s contention that the first asylum application she filed should be considered. See 8 C.F.R. § 103.2(b)(15) (the priority or processing date of a withdrawn application may not be applied to a later application).
Hiu claims she was persecuted in Indonesia based on an incident that occurred in a shopping mall, her fear of harm during the May 1998 riots, and the conflicts that arose near the city of Manado, where she moved after the riots. Substantial evidence supports the agency’s finding that Hiu failed to establish she suffered harm that rose to the level of past persecution. See Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir.2003). In addition, even as a member of a disfavored group, Hiu did not demonstrate the requisite individualized risk of persecution to *808establish a clear probability of future persecution. See id. at 1184-85; Wakkary, 558 F.3d at 1066 (“An applicant for withholding of removal will need to adduce a considerably larger quantum of individualized-risk evidence to prevail[.]”). Finally, the record does not compel a finding of a pattern or practice of persecution of Chinese Christians in Indonesia. See Wakkary, 558 F.3d at 1061. Accordingly, substantial evidence supports the agency’s denial of withholding of removal.
Substantial evidence also supports the agency’s denial of CAT relief because Hiu failed to establish that it is more likely than not she will be tortured in Indonesia. See Walckary, 558 F.3d at 1067-68.
PETITION FOR REVIEW DISMISSED in part; DENIED 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/8479450/ | HENRY, Chief Judge,
concurring.
This ease gives me pause. The Immigration Judge found Rev. Nalwamba’s testimony to be credible. A review of the kind of actions that he faced over many years is chilling, indeed: frequent detentions that were physically and psychologically abusive, some of them at gunpoint; several arrests, the longest lasting four days; the hunting down of the Reverend’s parishioners as they were thought to be opposed to the regime in power at the time; and frequent government searches. Under the present regime, he received three “official visits” from government officials in response to his public positions on land ownership. Maj. Op. at 861. They warned him not to be a “stumbling block” and apparently criticized him for providing assistance to a pregnant woman and her eight children. Id. Finally, rather than instruct his congregation to vote for the incumbent Museveni in the 2001 election, the Reverend encouraged his congregation members to make up their own educated minds during the election. Later that year, government officials forced him from his home at 2 a.m. He was marched to a “government clinic,” where he was interrogated, warned, and finally released. Id. at 862.
Given these acts of terror and harassment, we must determine, whether Rev. Nalwamba was subjected to “persecution” during the Museveni regime, as that term is defined by our precedent. The dictionary definition of persecution suggests that he was: For example, the American Heritage Dictionary defines to “persecute” as follows: “1. To oppress or harass with ill-treatment, especially because of race, religion, sexual orientation, or beliefs.” American Heritage Dictionary of The English Language 1350 (3d ed. 1992). Under that definition, it seems to me, the Reverend’s various abductions, detentions, interrogations, and threats against him qualify as persecution.
Our cases do seem to require very violent, pervasive harassment and even injury. Similar cases of harassment that have not resulted in a finding of persecution include: Sidabutar v. Gonzales, 503 F.3d 1116, 1118, 1124 (10th Cir.2007) (concluding that an Indonesian Christian man who had suffered repeated “beatings and robberies at the hands of Muslims” had not established past persecution); Jian Hui Li v. Keisler, 248 Fed.Appx. 852, 854 (10th Cir.2007) (affirming an immigration judge’s ruling that, even if true, the deprivation of petitioner’s right to education for three months and the broken arm he received during his fight with population control officials “constituted at most harassment and discrimination, but not past persecution within the meaning of the asylum statute”); Tulengkey v. Gonzales, 425 F.3d 1277, 1281 (10th Cir.2005) (af*866firming immigration judge’s decision that robbery of the Chinese Christian petitioner, “during which she was fondled and suffered an unspecified minor head injury, and her witnessing a Muslim mob eight years later steal food and rough up guests at a relative’s wedding” was insufficient evidence of past persecution); Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir.2005) (“[T]wo isolated criminal acts, perpetrated by unknown assailants, which resulted only in the theft of some personal property and a minor injury, [are] not sufficiently severe to be considered persecution.”) (cited with approval in Tulengkey, 425 F.3d at 1281); Eduard v. Ashcroft, 379 F.3d 182, 188 (5th Cir.2004) (“denigration, harassment, and threats” did not constitute persecution; nor did “morally reprehensible” discrimination) (internal quotation marks omitted) (cited with approval in Tulengkey, 425 F.3d at 1281); Zhu v. Gonzales, 465 F.3d 316, 318 (7th Cir.2006) (affirming an immigration judge’s decision that, when family planning commission ordered petitioner’s pregnant girlfriend to appear at hospital for forced abortion, when planning officials “kicked and struck [petitioner] with fists in an attempt to bring him to the police station; when he also was hit on the head with a brick, an injury that required seven stitches”; and when “officials asked him to turn himself in after seeking treatment,” the petitioner was not subjected to past persecution); Kapcia v. INS, 944 F.2d 702, 704-05, 708 (10th Cir.1991) (concluding that past persecution had not been demonstrated by an asylum applicant who had twice been detained for two-day periods during which he was beaten and interrogated, whose parents’ home had been searched, whose work locker had been repeatedly broken into, and who had been assigned poor work tasks, denied bonuses, and conscripted into the army, where he was constantly harassed).
Unlike the American Heritage definition, our circuit defines persecution as “the infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive,” and as “requiring] more than just restrictions or threats to life and liberty.” Tulengkey, 425 F.3d at 1280 (quotation omitted). Under our precedent, persecution is “an extreme concept that does not include every sort of treatment our society regards as offensive.” Tanuwidjaja v. Holder, No. 09-9511, 2009 WL 3645709, at *2 (10th Cir. Nov.5, 2009) (quoting Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir.1998) (quotation omitted)); Guerrero-Hernandez v. Mukasey, 290 Fed.Appx. 130, 133 (10th Cir.2008) (same); Julianto v. Mukasey, 282 Fed.Appx. 697, 700 (10th Cir.2008) (same).
Our circuit’s narrower definition of persecution still affords considerable latitude to our immigration judges. As the majority clearly points out, our review is for substantial evidence, under which agency findings “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Maj. Op. at 863. Had I been the hearing judge in this matter, I believe I would have calculated differently. However, based on our deferential standard of review, I concur in the result. See also Dandan v. Ashcroft, 339 F.3d 567, 573-74 (7th Cir.2004) (describing substantial evidence, in the context of reversal, as “a high standard and one that is properly difficult to meet without powerful and moving evidence”). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479457/ | OPINION
PER CURIAM.
Hacer Cakmakci has filed a petition for review of an order of the Board of Immigration Appeals (“BIA” or “Board”) denying her motion to reopen her removal proceedings. For the reasons that follow, we will deny the petition for review.
Cakmakci is a native and citizen of Turkey who arrived in the United States in April 2005 without valid travel documents. She was charged with removability under 8 U.S.C. § 1182(a)(7)(A)(i)(I). She appeared before the Immigration Judge (“IJ”) without counsel and received repeated continuances of her hearing date for the purpose of obtaining attorney representation. The IJ instructed Cakmakci regarding her right to present evidence and question any witnesses, and granted further continuances. The IJ held an evi-dentiary hearing on April 19, 2006 and heard closing arguments on May 9, 2006. Cakmakci proceeded pro se and presented her own testimony in support of her claims.
The IJ found her to be not credible, denied all relief, and ordered Cakmakci’s removal. Cakmakci appealed through counsel, arguing that the IJ had failed to consider whether Cakmakci was competent to face removal proceedings and to participate in the merits hearing, and that the IJ violated her due process rights because Cakmakci lacked sufficient mental capacity to participate. On May 12, 2008, the BIA dismissed the appeal, affirming and adopting the IJ’s decision. The BIA noted that no appellate brief was filed, and no documentary evidence was submitted to support the new claim of mental incompetence. The BIA also concurred with the IJ’s determination that, even if credible, Cakmakci failed to meet her burden of proof for her claims.
On June 11, 2008, Cakmakci filed a pro se motion to reconsider and reopen, arguing that counsel on appeal was ineffective in failing to file a brief and submit documentation, that she had difficulty obtaining counsel, that she suffered physical and emotional injuries from a car accident, and that she was unable to present her story at the hearing due to the tremendous pressure. In support of the motion, Cakmakci submitted documents, including medical and psychiatric records, and letters indicating that she was pursuing official grievances against former counsel. On October 31, 2008, the BIA construed the motion as a motion to reopen and denied it. The BIA concluded that, aside from the issue of whether Cakmakci met the procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637, 1988 WL 235454 (BIA 1988), regarding her ineffective assistance claim, Cakmakci had presented nothing to establish her prima facie eligibility for asylum, withholding of removal, or CAT relief if her proceedings were reopened. This petition for review followed.
We have jurisdiction to review the BIA’s denial of Cakmakci’s motion to reopen under 8 U.S.C. § 1252. We review the denial of a motion to reopen for abuse of discretion. See Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002). Thus, to succeed on her petition for review, Cakmakci must show that the Board’s decision was somehow arbitrary, irrational, or contrary to law. See id.
In a motion to reopen removal proceedings, the alien must proffer “new facts to be proven at a hearing to be held if the motion is granted,” and the motion “shall *259be supported by affidavits or other eviden-tiary material.” 8 C.F.R. § 1003.2(c)(1). A motion to reopen proceedings “shall not be granted” unless it appears to the Board that the evidence offered “is material and was not available and could not have been discovered or presented at the former hearing.” Id. The Board may deny a motion to reopen proceedings on any of these grounds: (1) it may hold that the alien has failed to establish a prima facie case for the underlying substantive relief; (2) it may conclude that the alien has failed to introduce previously unavailable and material evidence; and (8) if the underlying substantive relief is discretionary, it may decline to consider the first two threshold requirements and, instead, determine that the alien would not be entitled to the requested discretionary grant of relief. Immigration & Naturalization Serv. v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992) (citing Immigration & Naturalization Serv. v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988)). “As a general rule, motions to reopen are granted only under compelling circumstances.” Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir.2004).
Cakmakci argues that the BIA and the IJ erred in failing to address whether she was prejudiced by proceeding pro se at the hearing, given that she was mentally and physically ill at the time of the hearing. However, Cakmakci did not file a timely petition for review of the BIA’s May 12, 2008 decision, and we lack jurisdiction to review the BIA’s disposition of her due process claim and claim of incompetence at the hearing. See 8 U.S.C. § 1252(b)(1); Stone v. Immigration & Naturalization Serv., 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995). As for Cakmakci’s arguments concerning counsel on appeal, we conclude that the BIA did not abuse its discretion in denying the motion to reopen, even assuming that counsel was ineffective, because Cakmakci offered no evidence in her motion showing prima facie eligibility for relief if her case were reopened. Although she stated in her motion that she was unable to relate her story fully during the hearing before the IJ, and that “if given another opportunity [she] will be able to present a better case,” Cakmakci provided no additional information as to what her new supporting testimony or evidence would be.1 The Board’s reasons for denying the motion to reopen were not arbitrary, capricious or contrary to law.
We will deny the petition for review.
. As noted by the BIA in its October 31, 2008 decision, the BIA held in its May 12, 2008 decision that, even assuming that Cakmakci’s testimony was credible, she did not meet her burden of showing past persecution or a well-founded fear of future persecution in Turkey; her claim was not based on a protected ground. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479459/ | OPINION
PER CURIAM.
Petitioners Erla Sunarjo and Iman Mah-moud Chañad seek review of a final order of removal issued by the Board of Immigration Appeals (“BIA”). The Government has moved for summary affirmance of the BIA’s decision. Because the appeal presents no substantial question, we will grant the motion and deny the petition for review.
*268I.
Lead petitioner Erla Sunarjo is an ethnic Chinese, native and citizen of Indonesia, and a practicing Christian. Iman Mochamad, her husband and dependent respondent, is also a native and citizen of Indonesia. Sunarjo filed an application for asylum and withholding of removal less than one year after her arrival in the United States. Her application was not based on any allegations of past persecution in Indonesia, but on her fear of future persecution based on a pattern or practice of persecution of ethnic Chinese Christians in Indonesia. The Immigration Judge (“IJ”) denied relief because the record did not support a pattern or practice finding. AR 31. In conducting a de novo review of the dispositive legal issues on appeal, the BIA concluded that the IJ correctly found that Sunarjo faded to meet her burden of proof for asylum and withholding of removal because she had not established a pattern or practice of persecution of ethnic Chinese Christians in Indonesia. AR 2. The BIA found that the IJ had correctly applied Lie v. Ashcroft, 396 F.3d 530, 537-38 (3d Cir.2005), and Matter of A-M, 23 I & N Dec. 737, 741-42 (BIA 2005), in reaching its conclusion that no pattern or practice was established by the record in this case. AR 3. The BIA also affirmed the IJ’s decision to deny Sunarjo’s motion for a continuance to obtain the testimony of a recently-discovered expert witness, finding that Sunarjo had failed to demonstrate “good cause” for the continuance or show that her hearing was in any way unfair. Id.
Sunarjo filed a timely petition for review arguing (1) that the Board erred in affirming the IJ’s denial of her motion for a continuance, and (2) that the Board erred in finding that she had not met her burden of proving that she and her husband face a reasonable possibility of persecution in Indonesia. The Government moved for summary affirmance of the BIA’s decision.
II.
We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252(a). Because the BIA issued its own opinion, we review its decision rather than the IJ’s. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.2005). However, we look to the decision of the IJ to the extent that the BIA defers to or adopts the IJ’s reasoning. Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006).
We have jurisdiction to review an IJ’s decision to deny a continuance, and do so for abuse of discretion. Hashmi v. Att’y Gen., 531 F.3d 256, 259 (3d Cir.2008). We review agency factual determinations for substantial evidence. Wong v. Att’y Gen., 539 F.3d 225, 230 (3d Cir.2008). The Board’s conclusions regarding evidence of the well-founded fear of future persecution are findings of fact. Id. We will uphold such determinations “unless the evidence not only supports a contrary conclusion, but compels it.” Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir.2005) (internal citations omitted). Where an appeal presents no substantial question, we may take summary action. See Third Circuit LAR 27.4.
III.
We first consider Sunarjo’s claim that the BIA incorrectly determined that the record evidence did not establish a pattern or practice of persecution against Chinese Christians in Indonesia. In order to show a fear of future persecution the applicant must show a well-founded subjective fear, “supported by objective evidence that persecution is a reasonable possibility.” Chang v. INS, 119 F.3d 1055, 1066 (3d Cir.1997). The objective prong is satisfied either by showing that the applicant would *269be individually singled out for persecution, or that “ ‘there is a pattern or practice in his or her country of nationality ... of persecution of a group of persons similarly situated to the applicant on account of race, religion, nationality, membership in a particular social group, or political opinion.’ ” Sukwanputra v. Gonzales, 434 F.3d 627, 637 (3d Cir.2006) (quoting 8 C.F.R. 208.13(b)(2)(iii)(A)). To constitute a “pattern or practice,” the persecution of the group must be “systemic, pervasive, or organized.” Wong v. Att’y Gen., 539 F.3d 225, 233 (3d Cir.2008). In addition, the acts of persecution must be committed by the government or forces the government is either unable or unwilling to control. Sukwanputra, 434 F.3d at 637. The question of whether a pattern or practice exists is a question of fact that must be determined based on the individual record before the court. Id. at n. 10 (emphasizing that a pattern or practice finding was not foreclosed by previous holding because that case had relied on different country conditions evidence).
Sunarjo’s claim is not that she would be singled out for persecution upon return to Indonesia, but that there is a “pattern or practice” of discrimination against ethnic Chinese Christians like herself. In rejecting Sunarjo’s pattern or practice claim, the BIA found that the country conditions report in evidence did not establish “systemic, pervasive, or organized persecution” of ethnic Chinese in Indonesia, and concluded that although “the door is still open for a finding of pattern or practice” in future cases, “we are not persuaded that such has been shown here.” AR 3. The BIA’s findings are supported by substantial evidence. Sunarjo has not distinguished her argument, or the record it is built on, from similar claims that we have rejected in the past. See Wong, 539 F.3d at 233-34 (rejecting as “without merit” the contention that “the [2003 and 2004] State Department reports and other background materials document a pattern or practice of persecution of Chinese Christians in Indonesia”); Lie v. Ashcroft, 396 F.3d 530, 537-38 (3d Cir.2005) (finding that the 1999 Country Report indicated a sharp decline in violence against Chinese Christians in Indonesia and that the evidence of violence submitted was not sufficiently widespread as to constitute a pattern or practice). Although Sunarjo relied on the State Department Country Report for 2007 (released May 8, 2008), our most recent decisions have noted that the reports from 2005 to 2007 document a trend toward “similar or improved” treatment for Chinese Christians. See, e.g., Wong, 539 F.3d at 233-34. As such, we find no error in the BIA’s conclusion that the record in this case was insufficient to support a finding of a pattern or practice of persecution.
We next consider Sunarjo’s claim that the Board erred in concluding that the IJ did not violate her right to due process when he denied her motion for a continuance. Sunarjo argues that the IJ should have allowed her to introduce evidence concerning, recent developments in Indonesia because it relied exclusively on precedent in rejecting her pattern or practice claims. We disagree.
An IJ may “grant a motion for continuance for good cause shown.” 8 C.F.R. 1003.29. We review an IJ’s decision to deny a motion for a continuance for abuse of discretion, and will reverse only if the IJ’s decision is arbitrary, irrational or contrary to law. Hashmi, 531 F.3d at 259. An immigration judge may properly consider the merits of the underlying application for relief when deciding whether to deny a continuance. See Ponce-Leiva v. Ashcroft, 331 F.3d 369, 377 (3d Cir.2003) (considering merits of asylum claim in de*270ciding to allow case to proceed without counsel).
In his oral decision, the IJ concluded that Sunarjo’s pattern or practice claim was without merit, and denied the motion for a continuance because he was not convinced that additional evidence would have been probative:
Although respondent has, on a timely basis, sought a continuance today to try to get another expert that she has identified who she believes might indeed conclude that there is a pattern or practice of persecuting Chinese Christians in Indonesia, even if such a conclusion were reached, based upon the facts on this record ... this Court concludes that the organized, systemic, or pervasive standard has not been met, given the current analysis and implementation of that standard by the precedents that currently bind this Court.
AR 66-67. The IJ did not rely solely on case precedent in making this determination, but “considered all the evidence in the record,” which included an affidavit from expert Dr. Jeffrey Winters, a professor with decades of research experience in Southeast Asia and Indonesia, an affidavit from the Deputy Director for Government Relations at the International Rescue Committee, articles and communications reflecting evolving country conditions in Indonesia, as well as the most recent Country Report on Human Rights Practices for Indonesia, released by the Bureau of Democracy, Human Rights and Labor of the Department of State on March 11, 2008. AR 57-58, 67. While due process requires that Sunarjo be given a “reasonable opportunity to present evidence on [her] behalf,” Abdulrahman v. Ashcroft, 330 F.3d 587, 596 (3d Cir.2003) (citations omitted), it does not require an IJ to permit unlimited additions to the record if he determines they would be cumulative or fruitless. See Jarbough v. Att’y Gen., 483 F.3d 184, 192 (3d Cir.2007) (denying continuance to secure expert testimony did not violate due process where record contained an article by the same expert and there was no evidence that his in-court testimony would be materially different); Morgan v. Att’y Gen., 432 F.3d 226, 235 (3d Cir.2005) (finding no due process violation where alien could not demonstrate how additional evidence obtained during continuance would have impacted the outcome of her case).
We agree with the BIA that the record does not reflect a due process violation or that the hearings were conducted in a fundamentally unfair manner. Furthermore, substantial evidence supports the BIA’s conclusion that Sunarjo failed to show “good cause” for a continuance. Not only had other expert evidence regarding the treatment of ethnic Chinese Christians already been placed in the record, but Sunarjo failed to demonstrate that the proffered expert testimony would have affected the outcome of the case. Under the facts and circumstances presented here, the IJ’s decision was not arbitrary, irrational, or contrary to law, and the Board did not err in upholding it. See Hashmi, 531 F.3d at 259; Ponce-Leiva, 331 F.3d at 377.
Accordingly, Sunarjo’s petition for review does not raise a substantial question on appeal. We will therefore grant the Government’s motion for summary affir-mance and deny the petition for review. See Third Circuit LAR 27.4; I.O.P. 10.6. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479461/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Raymond Jerome Francis appeals the district court’s order denying his “Motion *285of Complaint ... And Request For Appropriate 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. Francis, No. 1:96-cr-00021-LHT-1, 2009 WL 4824989 (W.D.N.C. Dec. 11, 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/8479463/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mary King appeals the district court’s order finding her ineligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) (2006). In her informal appellate brief, King failed to challenge the district court’s reason supporting the denial of relief. King therefore has forfeited appellate review of the eligibility issue. See 4th Cir. R. 34(b) (“The Court will limit its review to the issues raised in the informal brief.”). Accordingly, we affirm. 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/8479468/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Feurtado appeals the district court’s order denying his motion for sentence reduction, pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Feurtado, No. 3:96-cr-00325-SB-1 (D.S.C. Nov. 12, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479446/ | MEMORANDUM **
Nova Wakarry Hiu, native and citizen of Indonesia, petitions for review of the Board of Immigration Appeals’ order dismissing her appeal from an immigration judge’s decision denying her application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. Reviewing for substantial evidence, Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.2009), we dismiss in part and deny in part the petition for review.
We lack jurisdiction to review the agency’s determination that Hiu’s asylum application was untimely because that finding was based on disputed facts. See Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir.2007) (per curiam). Additionally, we reject Hiu’s contention that the first asylum application she filed should be considered. See 8 C.F.R. § 103.2(b)(15) (the priority or processing date of a withdrawn application may not be applied to a later application).
Hiu claims she was persecuted in Indonesia based on an incident that occurred in a shopping mall, her fear of harm during the May 1998 riots, and the conflicts that arose near the city of Manado, where she moved after the riots. Substantial evidence supports the agency’s finding that Hiu failed to establish she suffered harm that rose to the level of past persecution. See Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir.2003). In addition, even as a member of a disfavored group, Hiu did not demonstrate the requisite individualized risk of persecution to *808establish a clear probability of future persecution. See id. at 1184-85; Wakkary, 558 F.3d at 1066 (“An applicant for withholding of removal will need to adduce a considerably larger quantum of individualized-risk evidence to prevail[.]”). Finally, the record does not compel a finding of a pattern or practice of persecution of Chinese Christians in Indonesia. See Wakkary, 558 F.3d at 1061. Accordingly, substantial evidence supports the agency’s denial of withholding of removal.
Substantial evidence also supports the agency’s denial of CAT relief because Hiu failed to establish that it is more likely than not she will be tortured in Indonesia. See Walckary, 558 F.3d at 1067-68.
PETITION FOR REVIEW DISMISSED in part; DENIED 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/8479448/ | HENRY, Chief Judge,
concurring.
This ease gives me pause. The Immigration Judge found Rev. Nalwamba’s testimony to be credible. A review of the kind of actions that he faced over many years is chilling, indeed: frequent detentions that were physically and psychologically abusive, some of them at gunpoint; several arrests, the longest lasting four days; the hunting down of the Reverend’s parishioners as they were thought to be opposed to the regime in power at the time; and frequent government searches. Under the present regime, he received three “official visits” from government officials in response to his public positions on land ownership. Maj. Op. at 861. They warned him not to be a “stumbling block” and apparently criticized him for providing assistance to a pregnant woman and her eight children. Id. Finally, rather than instruct his congregation to vote for the incumbent Museveni in the 2001 election, the Reverend encouraged his congregation members to make up their own educated minds during the election. Later that year, government officials forced him from his home at 2 a.m. He was marched to a “government clinic,” where he was interrogated, warned, and finally released. Id. at 862.
Given these acts of terror and harassment, we must determine, whether Rev. Nalwamba was subjected to “persecution” during the Museveni regime, as that term is defined by our precedent. The dictionary definition of persecution suggests that he was: For example, the American Heritage Dictionary defines to “persecute” as follows: “1. To oppress or harass with ill-treatment, especially because of race, religion, sexual orientation, or beliefs.” American Heritage Dictionary of The English Language 1350 (3d ed. 1992). Under that definition, it seems to me, the Reverend’s various abductions, detentions, interrogations, and threats against him qualify as persecution.
Our cases do seem to require very violent, pervasive harassment and even injury. Similar cases of harassment that have not resulted in a finding of persecution include: Sidabutar v. Gonzales, 503 F.3d 1116, 1118, 1124 (10th Cir.2007) (concluding that an Indonesian Christian man who had suffered repeated “beatings and robberies at the hands of Muslims” had not established past persecution); Jian Hui Li v. Keisler, 248 Fed.Appx. 852, 854 (10th Cir.2007) (affirming an immigration judge’s ruling that, even if true, the deprivation of petitioner’s right to education for three months and the broken arm he received during his fight with population control officials “constituted at most harassment and discrimination, but not past persecution within the meaning of the asylum statute”); Tulengkey v. Gonzales, 425 F.3d 1277, 1281 (10th Cir.2005) (af*866firming immigration judge’s decision that robbery of the Chinese Christian petitioner, “during which she was fondled and suffered an unspecified minor head injury, and her witnessing a Muslim mob eight years later steal food and rough up guests at a relative’s wedding” was insufficient evidence of past persecution); Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir.2005) (“[T]wo isolated criminal acts, perpetrated by unknown assailants, which resulted only in the theft of some personal property and a minor injury, [are] not sufficiently severe to be considered persecution.”) (cited with approval in Tulengkey, 425 F.3d at 1281); Eduard v. Ashcroft, 379 F.3d 182, 188 (5th Cir.2004) (“denigration, harassment, and threats” did not constitute persecution; nor did “morally reprehensible” discrimination) (internal quotation marks omitted) (cited with approval in Tulengkey, 425 F.3d at 1281); Zhu v. Gonzales, 465 F.3d 316, 318 (7th Cir.2006) (affirming an immigration judge’s decision that, when family planning commission ordered petitioner’s pregnant girlfriend to appear at hospital for forced abortion, when planning officials “kicked and struck [petitioner] with fists in an attempt to bring him to the police station; when he also was hit on the head with a brick, an injury that required seven stitches”; and when “officials asked him to turn himself in after seeking treatment,” the petitioner was not subjected to past persecution); Kapcia v. INS, 944 F.2d 702, 704-05, 708 (10th Cir.1991) (concluding that past persecution had not been demonstrated by an asylum applicant who had twice been detained for two-day periods during which he was beaten and interrogated, whose parents’ home had been searched, whose work locker had been repeatedly broken into, and who had been assigned poor work tasks, denied bonuses, and conscripted into the army, where he was constantly harassed).
Unlike the American Heritage definition, our circuit defines persecution as “the infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive,” and as “requiring] more than just restrictions or threats to life and liberty.” Tulengkey, 425 F.3d at 1280 (quotation omitted). Under our precedent, persecution is “an extreme concept that does not include every sort of treatment our society regards as offensive.” Tanuwidjaja v. Holder, No. 09-9511, 2009 WL 3645709, at *2 (10th Cir. Nov.5, 2009) (quoting Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir.1998) (quotation omitted)); Guerrero-Hernandez v. Mukasey, 290 Fed.Appx. 130, 133 (10th Cir.2008) (same); Julianto v. Mukasey, 282 Fed.Appx. 697, 700 (10th Cir.2008) (same).
Our circuit’s narrower definition of persecution still affords considerable latitude to our immigration judges. As the majority clearly points out, our review is for substantial evidence, under which agency findings “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Maj. Op. at 863. Had I been the hearing judge in this matter, I believe I would have calculated differently. However, based on our deferential standard of review, I concur in the result. See also Dandan v. Ashcroft, 339 F.3d 567, 573-74 (7th Cir.2004) (describing substantial evidence, in the context of reversal, as “a high standard and one that is properly difficult to meet without powerful and moving evidence”). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479452/ | PER CURIAM:
Cynthia Maisano, appointed counsel for Keith Barber, has filed a motion to withdraw on appeal, supported by a brief prepared pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record reveals that counsel’s assessment of the relative merit of the appeal is correct. Because independent examination of the entire record reveals no issues of arguable merit, counsel’s motion to withdraw is GRANTED, and Barber’s conviction and sentence is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479453/ | OPINION
SLOVITER, Circuit Judge.
I.
Pursuant to a plea agreement, appellant Lizette Morice pled guilty to seven counts of mail fraud in violation of 18 U.S.C. § 1341. The conduct with which Morice was charged was execution of a “Ponzi-type” scheme in which would-be investors contributed funds to Gaddel Enterprises, a company that Morice represented was in the business of buying tax-foreclosed real estate in New Jersey and reselling it at a profit. In fact, no properties were ever purchased and the money received from subsequent investors was used to pay prior investors. The investors lost a total of approximately $7,259,950. Investors were paid a total of $5,547,410.25 from the same *170accounts. Approximately $1.5 million was spent on salaries and office expenses. Morice retained approximately $200,000 for her own use.
Gaddel ceased operations after its offices were searched by the FBI in the Fall of 2007. Even after that, Morice did not stop her activities, soliciting money from the mother of a friend of her daughter on the ground that she was terminally ill. The woman gave Morice $500 and loaned her $5,800, and in return, Morice told the woman that she would make her the executor of her will and gave her a copy of a false will. Her use of the fraudulent will led to her arrest, and ultimately the present charges.
Following Morice’s guilty plea, the probation officer prepared a Pre-Sentence Investigation Report (“PSR”) which reported that Morice had two prior theft convictions, resulting in two criminal history points and a criminal history category of II. That, with an offense level of 38, resulted in a Guidelines range of 108-135 months imprisonment.
Morice filed what she denominated a motion for departure and variance, seeking a sentence of probation with a condition of home confinement. The bases she listed were:
(1) the extraordinary and compelling circumstance of the death, a month before sentencing, of Ms. Morice’s mother — the one family member capable of caring for Ms. Morice’s two minor children (analogizing to U.S.S.G. § 1B1.13);
(2) extraordinary family ties and responsibilities, under U.S.S.G. § 5H1.6, based on Ms. Morice’s need to care for her children;
(3) Ms. Morice’s minimal pecuniary gain from the scheme, as compared to the amount of money involved (U.S.S.G. § 5K2.0); and
(4)that the offense level in this case overstated the seriousness of the offense, under U.S.S.G. §§ 2B1.1, comment. (n,19(C)) & 5K2.0.
Appellant Br. at 5-6.
At the sentencing hearing Morice argued as additional mitigating factors that she was not motivated by greed, but by a serious psychological problem involving the need to pretend to be something she is not in order to win people’s approval, and a clinical psychologist’s conclusions that she had a major depressive disorder, generalized anxiety disorder, and personality disorder.
The District Court imposed a 120-month sentence, near the middle of the Guidelines range, followed by a 36-month term of supervision release. Morice appeals.1
II.
Before us Morice contends that the sentence is procedurally unreasonable because (1) the District Court never expressly ruled on Morice’s motions for downward departure, and (2) the District Court provided no explanation for the sentence imposed beyond a rote statement of the sentencing factors set forth in 18 U.S.C. § 3553(a). We reject both arguments.
We have set forth a three-step procedure for district courts in this circuit to follow in sentencing under the Guidelines:
(1) Courts must continue to calculate a defendant’s Guidelines sentence precisely as they would have before the decision in United States v. Booker, 543 U.S. 200 [220] 246 [125 S.Ct. 738, 160 L.Ed.2d 621] (2005).
(2) In doing so, they must formally rule on the motions of both parties and state *171on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit’s pre-Booker case law, which continues to have advisory force.
(B) Finally, they are required to exercise their discretion by considering the relevant § 3553(a) factors in setting the sentence regardless whether it varies from the sentence calculated under the Guidelines.
United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006).
Morice contends that the District Court failed to follow step two of Gunter because it never expressly ruled on her motions for downward departure nor indicated whether the implicit denial of the motions was based on legal or discretionary grounds. She also argues that the District Court never acknowledged, or expressly ruled upon, two of her departure motions — for the compelling and extraordinary circumstance of her mother’s death and for the loss enhancement overstating the seriousness of the offense.
We agree with the Government that Morice’s four arguments for downward departure were based upon two factual allegations: (1) the defendant was sole caretaker for her children; and (2) she received a small amount of money relative to the amount of money her numerous victims lost as a result of her conduct. These were fully addressed at the sentencing hearing. Moreover, it is evident the District Court rejected the requests for downward departure on discretionary, not legal, grounds, a decision that is not reviewable on appeal. See United States v. Jackson, 467 F.3d 834, 842 (3d Cir.2006) (holding that courts of appeals have no authority to review discretionary denials of departure motions and that district courts’ denials of departure motions are discretionary when the government concedes the “plausibility” of a downward departure).
Our decision in United States v. Lofink, 564 F.3d 232 (3d Cir.2009), on which Mor-ice relies, is distinguishable. Here, the District Court participated actively in the sentencing proceeding, questioned Morice about her performance as a parent and her prior criminal history. The District Court further informed Morice that she had not convinced the court that a guidelines sentence was inappropriate. Thereafter, the District Court imposed a within guideline sentence. Based on the foregoing analysis of the facts and the law related to this case, it is reasonable to infer that the District Court exercised its discretion not to depart from the guidelines and rejected Morice’s requests for downward departure.
We also reject Morice’s argument that we must reverse because the District Court did not explain why it rejected her request for a downward variance but merely recited the § 3553(a) sentencing factors. She cites several cases in which we directed remand to the sentencing court because of what we deemed to be inadequate justification. Those cases either predate the Supreme Court’s relevant decisions or involve sentences imposed outside the guidelines range. See, e.g., United States v. Levinson, 543 F.3d 190, 199 (3d Cir.2008) (district court varied downward from a range of 24-30 months imprisonment to a sentence of probation with little explanation); United States v. Ausburn, 502 F.3d 313, 331(3d Cir.2007) (district court’s upward variance from guideline range of 57-71 months to 144 months required a more extensive explanation).
We need not detail the circumstances of those cases because we are informed by the Supreme Court’s ruling in Rita v. United States, 551 U.S. 338, 127 S.Ct. *1722456, 168 L.Ed.2d 203 (2007), that the district judge’s explanation, while brief, was legally sufficient. In Rita, the defendant argued for a downward departure from the 33^1 month Guidelines sentence on the basis of his health, fear of retaliation in prison, and military record. Id. at 358, 127 S.Ct. 2456. The sentencing judge rejected the departure, stating merely that the guidelines range was not “inappropriate” and that the sentence at the bottom of the Guidelines range was “appropriate.” Id. The Supreme Court acknowledged that the judge might have said more but found this explanation sufficient, noting that the record made clear that the court listened to each argument, considered the supporting evidence, and did not believe the law requires the judge to write more extensively. Id.
The decision in Rita governs Morice’s case. The District Court heard, considered, and asked questions about Morice’s arguments. The Court questioned Mor-ice’s counsel about her criminal history, her relationship with her children, and the amount of money that the Morice received as result of her criminal conduct, and then questioned Government counsel concerning these issues. In imposing sentence, the District Court stated it had considered all of the § 3553(a) factors, examined Mor-ice’s history and characteristics, alluded to her past criminal history, and declared: “In this case the sentence within the range established by the guidelines fulfills the purposes of sentencing that I have set forth above....” App. at 139. Indeed, we have stated that a less extensive explanation may be given when the sentence falls within a properly calculated Guidelines range. Levinson, 543 F.3d at 197; see also United States v. Parker, 462 F.3d 273, 278 (3d Cir.2006) (holding that district courts need not explicitly comment on every sentencing factor if “the record makes clear the court took the factors into account in sentencing”).
Finally, because we believe our opinions provide adequate direction to the district courts regarding their obligation to consider a defendant’s motive or request to depart from the sentencing guidelines and to provide a sufficient explanation that will enable us to exercise our obligation to engage in the reasonableness review, we reject Morice’s suggestion that we establish a supervisory rule.
For the reasons set forth, we will affirm the judgment of the District Court.
. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479456/ | OPINION
RESTANI, Judge.
Petitioner, Jose Nestor Panesso Ramirez, petitions for review of a final order *226of removal based on the determination of the Board of Immigration Appeals (“BIA”) that he committed an aggravated felony pursuant to 8 U.S.C. §§ 1227(a)(2)(A)(iii) and 1101(a)(43)(A). For the reasons that follow, we will deny the petition for review.
Jose Panesso, a native of Colombia, was admitted to the United States as a permanent resident in July 1989. In April 2000, he pled guilty to endangering the welfare of children under New Jersey Criminal Code 2C:24^4(a), which provides in pertinent part, that “[a]ny person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child ... is guilty of a crime.” N.J. Stat. Ann. § 2C:24-4(a). During his plea colloquy, Panesso admitted that he had “a sexual relation with” a fourteen-year-old girl. (AR 418.)
In February 2008, the Department of Homeland Security (“DHS”) charged Panesso with removability. The Immigration Judge (“IJ”) granted Panesso’s application for cancellation of removal because it found that Stubbs v. Attorney General., 452 F.3d 251 (3d Cir.2006), held that a conviction under N.J. Stat. Ann. 2C:24-4(a) is not a conviction of the aggravated felony of “sexual abuse of a minor” under the Immigration and Nationality Act (“INA”), which would preclude relief from removal.1 The BIA vacated the IJ’s decision because it determined that Stubbs requires a court to look to the criminal record to determine whether a N.J. Stat. Ann. 2C:24-4(a) conviction constitutes an aggravated felony under the INA. The BIA did so and found that Panesso’s conviction, in conjunction with his admission during his plea colloquy, constituted “sexual abuse of a minor” for purposes of the INA and ordered Panesso removed from the United States.2 Panesso timely filed a petition for review to this Court.
This Court has jurisdiction over final orders of removal pursuant to 8 U.S.C. § 1252(a), as amended by the REAL ID Act of 2005, 8 U.S.C. § 1778. Stubbs, 452 F.3d at 253 n. 4. Although 8 U.S.C. § 1252(a)(2)(c) specifically prohibits any court from exercising jurisdiction over a removal by reason of having committed an aggravated felony, “we have always had jurisdiction to determine our own jurisdiction by engaging in an analysis of whether an alien was convicted of a non-reviewable aggravated felony.” Id. The legal question of whether Panesso’s offense is an aggravated felony is reviewed de novo. Id.
Stubbs held that the BIA’s inquiry beyond the statute of conviction of the facts alleged in the charging instrument “was justified” because N.J. Stat. Ann. 2C:24-4(a) includes conduct “which both may and may not involve sexual abuse of a minor.” Id. at 254-55 (internal quotation marks and citation omitted). In Stubbs, however, the charging instrument did not indicate that the conduct at issue constituted “sexual abuse of a minor” as defined by the BIA. Id. at 255. Accordingly, this Court was unable to conclude that Stubbs committed an aggravated felony pursuant to 8 U.S.C. § 1101(a)(43)(A). Id. at 256.
In this case, however, the record of the criminal case provides adequate information to conclude that the petitioner was convicted of an aggravated felony pursuant *227to 8 U.S.C. § 1101(a)(43)(A). The BIA has defined “sexual abuse of a minor” to include the use of a child to engage in sexually explicit conduct. In re Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 996 (BIA 1999). By his own admission during the plea colloquy, Panesso engaged in “a sexual relation” with a minor. (AR 418.) Accordingly, Panesso has been convicted of an aggravated felony pursuant to 8 U.S.C. § 1101(a)(43)(A) and he is statutorily ineligible for cancellation of removal under 8 U.S.C. § 1227(a)(2)(A)(iii). See Mercado v. Att’y Gen., 250 Fed.Appx. 515, 518 (3d Cir.2007) (“In this case ... we can say with assuredness that Mercado’s conviction constituted ‘sexual abuse of a minor.’ Looking to the charging instrument, plea colloquy, and ‘explicit factual findings by the trial judge,’ ... it is clear that Mercado had sexual intercourse with a minor and thus, did ‘use ... a child to engage in ... sexually explicit conduct.”)
For the foregoing reasons, we will deny the petition for review.
. The INA provides for the deportation of “[a]ny alien who is convicted of an aggravated felony at any time after admission.” 8 U.S.C. § 1227(a)(2)(A)(iii). Aggravated felony is defined as “murder, rape, or sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A).
. The BIA's reference to the repeated admission during the immigration proceedings is mere surplusage and inessential to its ultimate finding. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479458/ | OPINION
PER CURIAM.
Hacer Cakmakci has filed a petition for review of an order of the Board of Immigration Appeals (“BIA” or “Board”) denying her motion to reopen her removal proceedings. For the reasons that follow, we will deny the petition for review.
Cakmakci is a native and citizen of Turkey who arrived in the United States in April 2005 without valid travel documents. She was charged with removability under 8 U.S.C. § 1182(a)(7)(A)(i)(I). She appeared before the Immigration Judge (“IJ”) without counsel and received repeated continuances of her hearing date for the purpose of obtaining attorney representation. The IJ instructed Cakmakci regarding her right to present evidence and question any witnesses, and granted further continuances. The IJ held an evi-dentiary hearing on April 19, 2006 and heard closing arguments on May 9, 2006. Cakmakci proceeded pro se and presented her own testimony in support of her claims.
The IJ found her to be not credible, denied all relief, and ordered Cakmakci’s removal. Cakmakci appealed through counsel, arguing that the IJ had failed to consider whether Cakmakci was competent to face removal proceedings and to participate in the merits hearing, and that the IJ violated her due process rights because Cakmakci lacked sufficient mental capacity to participate. On May 12, 2008, the BIA dismissed the appeal, affirming and adopting the IJ’s decision. The BIA noted that no appellate brief was filed, and no documentary evidence was submitted to support the new claim of mental incompetence. The BIA also concurred with the IJ’s determination that, even if credible, Cakmakci failed to meet her burden of proof for her claims.
On June 11, 2008, Cakmakci filed a pro se motion to reconsider and reopen, arguing that counsel on appeal was ineffective in failing to file a brief and submit documentation, that she had difficulty obtaining counsel, that she suffered physical and emotional injuries from a car accident, and that she was unable to present her story at the hearing due to the tremendous pressure. In support of the motion, Cakmakci submitted documents, including medical and psychiatric records, and letters indicating that she was pursuing official grievances against former counsel. On October 31, 2008, the BIA construed the motion as a motion to reopen and denied it. The BIA concluded that, aside from the issue of whether Cakmakci met the procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637, 1988 WL 235454 (BIA 1988), regarding her ineffective assistance claim, Cakmakci had presented nothing to establish her prima facie eligibility for asylum, withholding of removal, or CAT relief if her proceedings were reopened. This petition for review followed.
We have jurisdiction to review the BIA’s denial of Cakmakci’s motion to reopen under 8 U.S.C. § 1252. We review the denial of a motion to reopen for abuse of discretion. See Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002). Thus, to succeed on her petition for review, Cakmakci must show that the Board’s decision was somehow arbitrary, irrational, or contrary to law. See id.
In a motion to reopen removal proceedings, the alien must proffer “new facts to be proven at a hearing to be held if the motion is granted,” and the motion “shall *259be supported by affidavits or other eviden-tiary material.” 8 C.F.R. § 1003.2(c)(1). A motion to reopen proceedings “shall not be granted” unless it appears to the Board that the evidence offered “is material and was not available and could not have been discovered or presented at the former hearing.” Id. The Board may deny a motion to reopen proceedings on any of these grounds: (1) it may hold that the alien has failed to establish a prima facie case for the underlying substantive relief; (2) it may conclude that the alien has failed to introduce previously unavailable and material evidence; and (8) if the underlying substantive relief is discretionary, it may decline to consider the first two threshold requirements and, instead, determine that the alien would not be entitled to the requested discretionary grant of relief. Immigration & Naturalization Serv. v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992) (citing Immigration & Naturalization Serv. v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988)). “As a general rule, motions to reopen are granted only under compelling circumstances.” Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir.2004).
Cakmakci argues that the BIA and the IJ erred in failing to address whether she was prejudiced by proceeding pro se at the hearing, given that she was mentally and physically ill at the time of the hearing. However, Cakmakci did not file a timely petition for review of the BIA’s May 12, 2008 decision, and we lack jurisdiction to review the BIA’s disposition of her due process claim and claim of incompetence at the hearing. See 8 U.S.C. § 1252(b)(1); Stone v. Immigration & Naturalization Serv., 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995). As for Cakmakci’s arguments concerning counsel on appeal, we conclude that the BIA did not abuse its discretion in denying the motion to reopen, even assuming that counsel was ineffective, because Cakmakci offered no evidence in her motion showing prima facie eligibility for relief if her case were reopened. Although she stated in her motion that she was unable to relate her story fully during the hearing before the IJ, and that “if given another opportunity [she] will be able to present a better case,” Cakmakci provided no additional information as to what her new supporting testimony or evidence would be.1 The Board’s reasons for denying the motion to reopen were not arbitrary, capricious or contrary to law.
We will deny the petition for review.
. As noted by the BIA in its October 31, 2008 decision, the BIA held in its May 12, 2008 decision that, even assuming that Cakmakci’s testimony was credible, she did not meet her burden of showing past persecution or a well-founded fear of future persecution in Turkey; her claim was not based on a protected ground. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479460/ | OPINION
PER CURIAM.
Petitioners Erla Sunarjo and Iman Mah-moud Chañad seek review of a final order of removal issued by the Board of Immigration Appeals (“BIA”). The Government has moved for summary affirmance of the BIA’s decision. Because the appeal presents no substantial question, we will grant the motion and deny the petition for review.
*268I.
Lead petitioner Erla Sunarjo is an ethnic Chinese, native and citizen of Indonesia, and a practicing Christian. Iman Mochamad, her husband and dependent respondent, is also a native and citizen of Indonesia. Sunarjo filed an application for asylum and withholding of removal less than one year after her arrival in the United States. Her application was not based on any allegations of past persecution in Indonesia, but on her fear of future persecution based on a pattern or practice of persecution of ethnic Chinese Christians in Indonesia. The Immigration Judge (“IJ”) denied relief because the record did not support a pattern or practice finding. AR 31. In conducting a de novo review of the dispositive legal issues on appeal, the BIA concluded that the IJ correctly found that Sunarjo faded to meet her burden of proof for asylum and withholding of removal because she had not established a pattern or practice of persecution of ethnic Chinese Christians in Indonesia. AR 2. The BIA found that the IJ had correctly applied Lie v. Ashcroft, 396 F.3d 530, 537-38 (3d Cir.2005), and Matter of A-M, 23 I & N Dec. 737, 741-42 (BIA 2005), in reaching its conclusion that no pattern or practice was established by the record in this case. AR 3. The BIA also affirmed the IJ’s decision to deny Sunarjo’s motion for a continuance to obtain the testimony of a recently-discovered expert witness, finding that Sunarjo had failed to demonstrate “good cause” for the continuance or show that her hearing was in any way unfair. Id.
Sunarjo filed a timely petition for review arguing (1) that the Board erred in affirming the IJ’s denial of her motion for a continuance, and (2) that the Board erred in finding that she had not met her burden of proving that she and her husband face a reasonable possibility of persecution in Indonesia. The Government moved for summary affirmance of the BIA’s decision.
II.
We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252(a). Because the BIA issued its own opinion, we review its decision rather than the IJ’s. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.2005). However, we look to the decision of the IJ to the extent that the BIA defers to or adopts the IJ’s reasoning. Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006).
We have jurisdiction to review an IJ’s decision to deny a continuance, and do so for abuse of discretion. Hashmi v. Att’y Gen., 531 F.3d 256, 259 (3d Cir.2008). We review agency factual determinations for substantial evidence. Wong v. Att’y Gen., 539 F.3d 225, 230 (3d Cir.2008). The Board’s conclusions regarding evidence of the well-founded fear of future persecution are findings of fact. Id. We will uphold such determinations “unless the evidence not only supports a contrary conclusion, but compels it.” Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir.2005) (internal citations omitted). Where an appeal presents no substantial question, we may take summary action. See Third Circuit LAR 27.4.
III.
We first consider Sunarjo’s claim that the BIA incorrectly determined that the record evidence did not establish a pattern or practice of persecution against Chinese Christians in Indonesia. In order to show a fear of future persecution the applicant must show a well-founded subjective fear, “supported by objective evidence that persecution is a reasonable possibility.” Chang v. INS, 119 F.3d 1055, 1066 (3d Cir.1997). The objective prong is satisfied either by showing that the applicant would *269be individually singled out for persecution, or that “ ‘there is a pattern or practice in his or her country of nationality ... of persecution of a group of persons similarly situated to the applicant on account of race, religion, nationality, membership in a particular social group, or political opinion.’ ” Sukwanputra v. Gonzales, 434 F.3d 627, 637 (3d Cir.2006) (quoting 8 C.F.R. 208.13(b)(2)(iii)(A)). To constitute a “pattern or practice,” the persecution of the group must be “systemic, pervasive, or organized.” Wong v. Att’y Gen., 539 F.3d 225, 233 (3d Cir.2008). In addition, the acts of persecution must be committed by the government or forces the government is either unable or unwilling to control. Sukwanputra, 434 F.3d at 637. The question of whether a pattern or practice exists is a question of fact that must be determined based on the individual record before the court. Id. at n. 10 (emphasizing that a pattern or practice finding was not foreclosed by previous holding because that case had relied on different country conditions evidence).
Sunarjo’s claim is not that she would be singled out for persecution upon return to Indonesia, but that there is a “pattern or practice” of discrimination against ethnic Chinese Christians like herself. In rejecting Sunarjo’s pattern or practice claim, the BIA found that the country conditions report in evidence did not establish “systemic, pervasive, or organized persecution” of ethnic Chinese in Indonesia, and concluded that although “the door is still open for a finding of pattern or practice” in future cases, “we are not persuaded that such has been shown here.” AR 3. The BIA’s findings are supported by substantial evidence. Sunarjo has not distinguished her argument, or the record it is built on, from similar claims that we have rejected in the past. See Wong, 539 F.3d at 233-34 (rejecting as “without merit” the contention that “the [2003 and 2004] State Department reports and other background materials document a pattern or practice of persecution of Chinese Christians in Indonesia”); Lie v. Ashcroft, 396 F.3d 530, 537-38 (3d Cir.2005) (finding that the 1999 Country Report indicated a sharp decline in violence against Chinese Christians in Indonesia and that the evidence of violence submitted was not sufficiently widespread as to constitute a pattern or practice). Although Sunarjo relied on the State Department Country Report for 2007 (released May 8, 2008), our most recent decisions have noted that the reports from 2005 to 2007 document a trend toward “similar or improved” treatment for Chinese Christians. See, e.g., Wong, 539 F.3d at 233-34. As such, we find no error in the BIA’s conclusion that the record in this case was insufficient to support a finding of a pattern or practice of persecution.
We next consider Sunarjo’s claim that the Board erred in concluding that the IJ did not violate her right to due process when he denied her motion for a continuance. Sunarjo argues that the IJ should have allowed her to introduce evidence concerning, recent developments in Indonesia because it relied exclusively on precedent in rejecting her pattern or practice claims. We disagree.
An IJ may “grant a motion for continuance for good cause shown.” 8 C.F.R. 1003.29. We review an IJ’s decision to deny a motion for a continuance for abuse of discretion, and will reverse only if the IJ’s decision is arbitrary, irrational or contrary to law. Hashmi, 531 F.3d at 259. An immigration judge may properly consider the merits of the underlying application for relief when deciding whether to deny a continuance. See Ponce-Leiva v. Ashcroft, 331 F.3d 369, 377 (3d Cir.2003) (considering merits of asylum claim in de*270ciding to allow case to proceed without counsel).
In his oral decision, the IJ concluded that Sunarjo’s pattern or practice claim was without merit, and denied the motion for a continuance because he was not convinced that additional evidence would have been probative:
Although respondent has, on a timely basis, sought a continuance today to try to get another expert that she has identified who she believes might indeed conclude that there is a pattern or practice of persecuting Chinese Christians in Indonesia, even if such a conclusion were reached, based upon the facts on this record ... this Court concludes that the organized, systemic, or pervasive standard has not been met, given the current analysis and implementation of that standard by the precedents that currently bind this Court.
AR 66-67. The IJ did not rely solely on case precedent in making this determination, but “considered all the evidence in the record,” which included an affidavit from expert Dr. Jeffrey Winters, a professor with decades of research experience in Southeast Asia and Indonesia, an affidavit from the Deputy Director for Government Relations at the International Rescue Committee, articles and communications reflecting evolving country conditions in Indonesia, as well as the most recent Country Report on Human Rights Practices for Indonesia, released by the Bureau of Democracy, Human Rights and Labor of the Department of State on March 11, 2008. AR 57-58, 67. While due process requires that Sunarjo be given a “reasonable opportunity to present evidence on [her] behalf,” Abdulrahman v. Ashcroft, 330 F.3d 587, 596 (3d Cir.2003) (citations omitted), it does not require an IJ to permit unlimited additions to the record if he determines they would be cumulative or fruitless. See Jarbough v. Att’y Gen., 483 F.3d 184, 192 (3d Cir.2007) (denying continuance to secure expert testimony did not violate due process where record contained an article by the same expert and there was no evidence that his in-court testimony would be materially different); Morgan v. Att’y Gen., 432 F.3d 226, 235 (3d Cir.2005) (finding no due process violation where alien could not demonstrate how additional evidence obtained during continuance would have impacted the outcome of her case).
We agree with the BIA that the record does not reflect a due process violation or that the hearings were conducted in a fundamentally unfair manner. Furthermore, substantial evidence supports the BIA’s conclusion that Sunarjo failed to show “good cause” for a continuance. Not only had other expert evidence regarding the treatment of ethnic Chinese Christians already been placed in the record, but Sunarjo failed to demonstrate that the proffered expert testimony would have affected the outcome of the case. Under the facts and circumstances presented here, the IJ’s decision was not arbitrary, irrational, or contrary to law, and the Board did not err in upholding it. See Hashmi, 531 F.3d at 259; Ponce-Leiva, 331 F.3d at 377.
Accordingly, Sunarjo’s petition for review does not raise a substantial question on appeal. We will therefore grant the Government’s motion for summary affir-mance and deny the petition for review. See Third Circuit LAR 27.4; I.O.P. 10.6. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479466/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
L. Ruther appeals the district court’s order in his civil action denying his motion to reconsider the denial of the court’s earlier order denying his motion for a jury trial. The district court’s order, denying Ruther’s motion for a new trial, was filed on August 21, 2008, and Ruther’s motion to reconsider that order was filed on October 13, 2009. Concluding the motion to reconsider was untimely filed, the district court denied relief. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Ruther v. United States, No. 3:07-cv-00475-JRS (EJD.Va. Dec. 17, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479469/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Luis Rafael Figueroa-Hernandez, a federal prisoner, appeals the district court’s order denying relief on his 28 U.S.C. § 2241 (2006) petition, and his subsequent motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Figueroa-Hernandez v. O’Brien, No. 7:10-cv-00027-gec-mfu, 2010 WL 282908 (W.D.Va. Jan. 21, 2010, Feb. 18, 2010). 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/8479472/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Elton Williams, a federal prisoner, appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on Williams’ 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. Williams v. Stansberry, No. 2:09-cv-00414-RBS-DEM, 2010 WL 604864 (E.D.Va. Feb. 18, 2010). 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/8479473/ | *293Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lamont Henderson appeals the district court’s order accepting the recommendation of the magistrate judge and dismissing without prejudice Henderson’s civil complaint for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Henderson v. U.S. Attorney Gen., No. 3:09-cv02962-CMC, 2010 WL 146262 (D.S.C. filed Jan. 7, 2010; entered Jan. 8, 2010). 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/8479476/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gbeke Michael Awala, a federal prisoner, appeals the district court’s order dismissing without prejudice 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. Awala v. Immigration Judge, No. 1:09-cv-03442-WDQ, 2010 WL 117744 (D.Md. Jan. 7, 2010). 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/8479478/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Isiah James, Jr. petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his 28 U.S.C. § 2241 (2006) petition. He seeks an order from this court directing the district court to act. We find there has been no undue delay in the district court. Accordingly, although we grant leave to proceed in for-ma pauperis, we deny the mandamus petition. We dispense with oral argument be*295cause the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479479/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lorenzo Deshon Stephens appeals the district court’s order denying his motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See United States v. Stephens, No. 3:06-cr-00281-HEH-1 (E.D.Va. Dec. 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/8479482/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bruce Lee Johnson appeals the district court’s order denying his motion under Fed.R.Civ.P. 60(b)(4) to set aside his conviction on the ground that the criminal judgment against him is void. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Johnson, No. 4:02-cr-00579-CWH-2 (D.S.C. Feb. 1, 2010). 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/8479484/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Raphael Woodberry appeals the district court’s order denying his motion for specific performance of the plea agreement in his underlying criminal conviction. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Woodberry, No. 4:02-cr-00040-TLW-1 (D.S.C. Jan. 27, 2010). 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/8479471/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Elton Williams, a federal prisoner, appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on Williams’ 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. Williams v. Stansberry, No. 2:09-cv-00414-RBS-DEM, 2010 WL 604864 (E.D.Va. Feb. 18, 2010). 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/8479474/ | *293Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lamont Henderson appeals the district court’s order accepting the recommendation of the magistrate judge and dismissing without prejudice Henderson’s civil complaint for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Henderson v. U.S. Attorney Gen., No. 3:09-cv02962-CMC, 2010 WL 146262 (D.S.C. filed Jan. 7, 2010; entered Jan. 8, 2010). 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/8479475/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gbeke Michael Awala, a federal prisoner, appeals the district court’s order dismissing without prejudice 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. Awala v. Immigration Judge, No. 1:09-cv-03442-WDQ, 2010 WL 117744 (D.Md. Jan. 7, 2010). 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/8479477/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Isiah James, Jr. petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his 28 U.S.C. § 2241 (2006) petition. He seeks an order from this court directing the district court to act. We find there has been no undue delay in the district court. Accordingly, although we grant leave to proceed in for-ma pauperis, we deny the mandamus petition. We dispense with oral argument be*295cause the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479480/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lorenzo Deshon Stephens appeals the district court’s order denying his motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See United States v. Stephens, No. 3:06-cr-00281-HEH-1 (E.D.Va. Dec. 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/8479481/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bruce Lee Johnson appeals the district court’s order denying his motion under Fed.R.Civ.P. 60(b)(4) to set aside his conviction on the ground that the criminal judgment against him is void. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Johnson, No. 4:02-cr-00579-CWH-2 (D.S.C. Feb. 1, 2010). 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/8479483/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Raphael Woodberry appeals the district court’s order denying his motion for specific performance of the plea agreement in his underlying criminal conviction. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Woodberry, No. 4:02-cr-00040-TLW-1 (D.S.C. Jan. 27, 2010). 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/8479487/ | *313Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terence Terell Bryan appeals the district court’s order denying his motion under Federal Rules of Civil Procedure 60(b). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Bryan v. South Carolina Dep’t of Corr., No. 4:06-cv-03358-TLW, 2009 WL 5062404 (D.S.C. 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.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479491/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Aaron Holsey appeals the district court’s orders dismissing this action and denying Holsey’s motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Holsey v. SunTrust Bank, Inc., No. 1:09-cv-01717-WMN, 2009 WL 5108890 (D. Md. Dec. 16, 2009 & Jan. 7, 2010). 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/8479493/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marquis D. Arrington appeals the district court’s order denying his second 18 U.S.C. § 3582(c)(2) (2006) motion for reduction of sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Arrington, No. 3:06-cr-00255-JRS (E.D.Va. Oct. 27, 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/8479500/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pauline Rowl appeals the district court’s orders dismissing her federal civil rights suit. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Rowl v. Smith Debnam Narrow, Wyche Saintsing & Myers, LLP, No. 3:07-cv-00491-RJC-DLH, 2009 WL 187575 (W.D.N.C. Jan. 23, 2009) & (June 4, 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/8479486/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Maurice Foley, a federal prisoner, appeals the district court’s order dismissing without prejudice his 28 U.S.C. § 2241 (2006) petition, and its subsequent order denying leave to proceed in forma pauperis on appeal. We have reviewed the record and find no reversible error. Accordingly, although we grant leave to proceed in for-ma pauperis, we- affirm for the reasons stated by the district court. Foley v. O’Brien, No. 7:09-cv-00212-jct-mfu, 2009 WL 5178374 (W.D.Va. Dec. 29, 2009, Feb. 3, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials be*312fore 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/8479488/ | *313Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terence Terell Bryan appeals the district court’s order denying his motion under Federal Rules of Civil Procedure 60(b). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Bryan v. South Carolina Dep’t of Corr., No. 4:06-cv-03358-TLW, 2009 WL 5062404 (D.S.C. 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.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479490/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lance Bishop Steglieh appeals the district court’s order denying relief on his second motion for reduction of sentence filed pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Steglich, No. 3:00-cr-00063-jpj-9 (W.D.Va. Dec. 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/8479492/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Aaron Holsey appeals the district court’s orders dismissing this action and denying Holsey’s motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Holsey v. SunTrust Bank, Inc., No. 1:09-cv-01717-WMN, 2009 WL 5108890 (D. Md. Dec. 16, 2009 & Jan. 7, 2010). 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/8479494/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marquis D. Arrington appeals the district court’s order denying his second 18 U.S.C. § 3582(c)(2) (2006) motion for reduction of sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Arrington, No. 3:06-cr-00255-JRS (E.D.Va. Oct. 27, 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/8479496/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David L. Reynolds appeals the district court’s order denying his motion for a writ of mandamus pursuant to 28 U.S.C. § 1651 (2006). We have reviewed the record and find no reversible error. Accordingly, although we grant leave to proceed in forma pauperis, we affirm for the reasons stated by the district court. Reynolds v. Supreme Court of Virginia, No. 1:09-cv-01079-JCC-TRJ (E.D.Va. Nov. 24, 2009). Additionally, we deny as unnecessary Reynolds’ motion for a certificate of appealability. 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/8479498/ | *324Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Baltasaras Romilus appeals the district court’s order denying his motion for a sentence reduction under 18 U.S.C. § 3582(c) (2006). We have reviewed the record and agree with the district court’s conclusion that Romilus was not eligible for a sentence reduction because he was found responsible for more than 4.5 kilograms of crack cocaine. Accordingly, we affirm the district court’s order. United States v. Romilus, No. 5:94-cr-00097-F-15 (E.D.N.C. July 13, 2009). We deny Romilus’s motion for appointment of 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/8479504/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Debra Pletz appeals the district court’s order granting summary judgment to the Defendant in her civil action. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Pletz v. Hayden, No. 1:08-cv-00539-CMH-TCB, 2009 WL 274505 (E.D. Va. filed Feb. 4, 2009; entered Feb. 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/8479505/ | PER CURIAM: *
The attorney appointed to represent Mark Holper has moved for leave to with*363draw 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). Holper has filed a response. Our independent review of the record, counsel’s brief, and Holper’s response 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. 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/8479511/ | PER CURIAM: *
The Federal Public Defender appointed to represent Harry Gilberto Pioquinto-Narcizco 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). Pio-quinto-Narcizco 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 APPEALS ARE DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479513/ | PER CURIAM: *
AFFIRMED. See Rule 47.6.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479515/ | PER CURIAM: *
This is an appeal from the district court’s order dismissing the case for lack of jurisdiction. Finding no error, we AFFIRM.
Appellants seek declaratory relief, in-junctive relief, compensatory damages, and punitive damages for the assessment of Mississippi state taxes. Appellants claim the tax laws are being administered in a fraudulent and racially discriminatory manner. Specifically, Appellants allege that state tax assessors are over-valuing black farmers’ homes and farms (including theirs) while under-valuing white farmers’ homes and farms. Appellants also argue that the relevant state tax laws do not allow a sufficient period of time to appeal any tax assessment of their property. Appellants claim that the laws and the state officials’ actions violate the First, Fourth, Fifth, Eighth and Fourteenth Amendments to the federal Constitution. Appellants bring their claims pursuant to 42 U.S.C. §§ 1983, 1985 and 2000d.
In dismissing the case, the district court held that it lacked jurisdiction to review Appellants’ claims. Specifically, the court based its decision on the jurisdictional language of the Tax Injunction Act, 28 U.S.C. § 1341, which prohibits district courts from “enjoin[ing], suspending] or restraining] the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” See also Fed.R.Civ.P. 12(h)(3).
We review a district court’s dismissal of a case based on lack of subject matter jurisdiction de novo. See Home Builders Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir.1998).
Appellants argue that the district court erred by applying the Tax Injunction Act to bar Appellants’ claims. However, Appellants’ claims are precisely the type of claims foreclosed by the Act, as demonstrated by our precedents. See, e.g., Home Builders, 143 F.3d at 1012-13; Bland v. McHann, 463 F.2d 21, 24 (5th Cir.1972). For example, in Home Builders, the plaintiffs filed suit against the city pursuant to 42 U.S.C. § 1983 regarding a $700 impact fee that the city imposed as a condition to obtaining a building permit. *423See Home Builders, 143 F.3d at 1009. The plaintiffs sought declaratory relief, in-junctive relief, and a refund of the impact fees. See id. The plaintiffs argued that the impact fees were “ ‘nothing more than an improper, unlawful and unconstitutional form of taxation or general tax.’ ” Id. After discussing what constituted a “tax” under the Act, we affirmed the district court’s dismissal, holding that the plaintiffs’ claims were barred by the Act. See id. at 1012-13. Specifically, we found that Mississippi state law provided a “plain, speedy and efficient remedy” for challenging the state’s tax laws. See id. at 1012. Thus, the federal courts had no jurisdiction.
Similarly, in Bland, the plaintiffs brought a civil rights claim of racial discrimination pursuant to 42 U.S.C. § 1983 against municipal officials for what the plaintiffs alleged were discriminatory ad valorem tax assessments. See Bland, 463 F.2d at 23. The plaintiffs sought both injunctive relief and a refund of past taxes paid. See id. at 23 n. 2. After a trial, the district court dismissed the case, holding that the Tax Injunction Act barred relief. See id. at 23-24. Specifically, the court held that there were adequate remedies for the plaintiffs’ claims in Mississippi state courts. See id. On appeal, we upheld the case’s dismissal pursuant to the Act but faulted the district court for allowing the case to first go to trial. See id. at 24. In describing the breadth of claims prohibited by the Act, we stated:
We are convinced that both longstanding judicial policy and congressional restriction of federal jurisdiction in cases involving state tax administration make it the duty of federal courts to withhold relief when a state legislature has provided an adequate scheme whereby a taxpayer may maintain a suit to challenge a state tax.
Id.
Because Mississippi state law provided adequate relief for the plaintiffs’ claims, we held that the district court should have dismissed the case before reaching the merits. See id. at 29.
As in the cases above, Appellants seek declaratory relief, injunctive relief and damages pursuant to 42 U.S.C. § 1983 for taxes that they claim are unconstitutional and that are allegedly administered in a discriminatory fashion. Neither party disputes the district court’s holding that the taxes in question are of the type contemplated under the Tax Injunction Act. In addition, we have already held Mississippi law to provide an adequate remedy for such claims.1 Appellants’ claims are therefore indistinguishable for jurisdictional purposes from those brought in Home Builders and Bland. Accordingly, the district court correctly dismissed them as barred by the Act.
Appellants further argue that the Supreme Court’s decision in Hibbs v. Winn “cleared the way” for Appellants to bring their suit in federal court. See Hibbs, 542 U.S. 88, 124 S.Ct. 2276, 159 L.Ed.2d 172 (2004). However, Hibbs is readily distinguishable from the instant case. In Hibbs, the plaintiff taxpayers challenged the constitutionality of a state statute that provided tax credits to third parties attending private religious schools. See Hibbs, 542 U.S. at 92, 124 S.Ct. at 2281. The Court noted at the outset that “Plaintiffs-respondents do not contest their own tax liability. Nor do they seek to impede Arizona’s receipt of tax revenues.” Id. Based on these facts, the Court held that the Tax Injunction Act did not bar the plaintiffs’ *424claims. See id. at 111-12, 124 S.Ct. at 2292. We have therefore interpreted Hibbs to allow challenges to state tax laws in federal court “only where (1) a third party (not the taxpayer) files suit, and (2) the suit’s success will enrich, not deplete, the government entity’s coffers.” Henderson v. Stalder, 407 F.3d 351, 359 (5th Cir.2005) (footnote omitted).
In the instant case, Appellants are the alleged taxpayers, and they expressly seek relief from state tax laws as applied to them. Moreover, any consequent relief this court could fashion based on the alleged facts would involve the “disruption of ‘state tax administration’ ... specifically in relation to ‘the collection of revenue.’ ” Hibbs, 542 U.S. at 105, 124 S.Ct. at 2288 (quoting Cal. v. Grace Brethren Church, 457 U.S. 393, 410, 102 S.Ct. 2498, 73 L.Ed.2d 93 (1982) (additional cite omitted)). Accordingly, Appellants’ suit violates both prongs of the Hibbs test.
Finally, we note that Appellants focus much of their appellate arguments on seeking relief pursuant to 42 U.S.C. § 2000d rather than pursuant to 42 U.S.C. § 1983, although both statutes are cited in their complaint. As the language of the Tax Injunction Act makes clear, the bar to federal jurisdiction does not depend on the federal statute or constitutional provision that the tax law allegedly violates; rather, jurisdiction depends on whether the relief sought requires the federal court to “enjoin, suspend or restrain the assessment, levy or collection of any tax under State law[.]” See 28 U.S.C. § 1341; see also Hibbs, 542 U.S. at 99, 124 S.Ct. at 2284 (“To determine whether this litigation falls within [the Act’s] prohibition, it is appropriate, first, to identify the relief sought.”). As stated above, Appellants expressly seek declaratory and injunctive relief from the application of Mississippi state tax law, as well as compensatory and punitive damages for past improper tax assessments. These are precisely the kinds of relief barred by the Act.2 See, e.g., Home Builders, 143 F.3d at 1012-13; Bland, 463 F.2d at 24. Accordingly, we do not reach the question of whether Appellants could otherwise state a claim under 42 U.S.C. § 2000d.3 AFFIRMED.
Pursuant to 5th Cir R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
. The relevant state laws governing tax remedies in state court have not changed since Home Builders. See Home Builders, 143 F.3d at 1009; Miss.Code Ann § 11-13-11 (West 2010).
. Indeed, it is unclear what relief Appellants could seek based on the alleged facts that does not fall under the Act.
. Were we to reach the merits of this claim, however, we would note that 42 U.S.C. § 2000d bars unlawful "discrimination under any program or activity receiving Federal financial assistance.” Appellants have pointed to no case law or precedent that regards state tax collection as a "program or activity receiving Federal financial assistance.” Therefore, it is unclear how § 2000d would even apply in this case. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479518/ | PER CURIAM: *
The Federal Public Defender appointed to represent Fernando Cruz-Renteria has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Cruz-Renteria 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, *426and 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/8479502/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dairus Kiowa Perkins appeals the district court’s orders finding him ineligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) (2006), and denying his motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Perkins, No. 4:96-cr-30029-jlk-1 (W.D.Va. Nov. 19, 2009; Dec. 22, 2009). We deny Perkins’ motion to hold Appeal No. 09-8156 in abeyance 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/8479503/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Debra Pletz appeals the district court’s order granting summary judgment to the Defendant in her civil action. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Pletz v. Hayden, No. 1:08-cv-00539-CMH-TCB, 2009 WL 274505 (E.D. Va. filed Feb. 4, 2009; entered Feb. 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/8479506/ | PER CURIAM: *
The attorney appointed to represent Mark Holper has moved for leave to with*363draw 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). Holper has filed a response. Our independent review of the record, counsel’s brief, and Holper’s response 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. 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/8479508/ | PER CURIAM: *
The attorney appointed to represent Terrance Howard 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). Howard 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/8479512/ | PER CURIAM: *
The Federal Public Defender appointed to represent Harry Gilberto Pioquinto-Narcizco 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). Pio-quinto-Narcizco 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 APPEALS ARE DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479514/ | PER CURIAM: *
AFFIRMED. See Rule 47.6.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479516/ | PER CURIAM: *
This is an appeal from the district court’s order dismissing the case for lack of jurisdiction. Finding no error, we AFFIRM.
Appellants seek declaratory relief, in-junctive relief, compensatory damages, and punitive damages for the assessment of Mississippi state taxes. Appellants claim the tax laws are being administered in a fraudulent and racially discriminatory manner. Specifically, Appellants allege that state tax assessors are over-valuing black farmers’ homes and farms (including theirs) while under-valuing white farmers’ homes and farms. Appellants also argue that the relevant state tax laws do not allow a sufficient period of time to appeal any tax assessment of their property. Appellants claim that the laws and the state officials’ actions violate the First, Fourth, Fifth, Eighth and Fourteenth Amendments to the federal Constitution. Appellants bring their claims pursuant to 42 U.S.C. §§ 1983, 1985 and 2000d.
In dismissing the case, the district court held that it lacked jurisdiction to review Appellants’ claims. Specifically, the court based its decision on the jurisdictional language of the Tax Injunction Act, 28 U.S.C. § 1341, which prohibits district courts from “enjoin[ing], suspending] or restraining] the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” See also Fed.R.Civ.P. 12(h)(3).
We review a district court’s dismissal of a case based on lack of subject matter jurisdiction de novo. See Home Builders Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir.1998).
Appellants argue that the district court erred by applying the Tax Injunction Act to bar Appellants’ claims. However, Appellants’ claims are precisely the type of claims foreclosed by the Act, as demonstrated by our precedents. See, e.g., Home Builders, 143 F.3d at 1012-13; Bland v. McHann, 463 F.2d 21, 24 (5th Cir.1972). For example, in Home Builders, the plaintiffs filed suit against the city pursuant to 42 U.S.C. § 1983 regarding a $700 impact fee that the city imposed as a condition to obtaining a building permit. *423See Home Builders, 143 F.3d at 1009. The plaintiffs sought declaratory relief, in-junctive relief, and a refund of the impact fees. See id. The plaintiffs argued that the impact fees were “ ‘nothing more than an improper, unlawful and unconstitutional form of taxation or general tax.’ ” Id. After discussing what constituted a “tax” under the Act, we affirmed the district court’s dismissal, holding that the plaintiffs’ claims were barred by the Act. See id. at 1012-13. Specifically, we found that Mississippi state law provided a “plain, speedy and efficient remedy” for challenging the state’s tax laws. See id. at 1012. Thus, the federal courts had no jurisdiction.
Similarly, in Bland, the plaintiffs brought a civil rights claim of racial discrimination pursuant to 42 U.S.C. § 1983 against municipal officials for what the plaintiffs alleged were discriminatory ad valorem tax assessments. See Bland, 463 F.2d at 23. The plaintiffs sought both injunctive relief and a refund of past taxes paid. See id. at 23 n. 2. After a trial, the district court dismissed the case, holding that the Tax Injunction Act barred relief. See id. at 23-24. Specifically, the court held that there were adequate remedies for the plaintiffs’ claims in Mississippi state courts. See id. On appeal, we upheld the case’s dismissal pursuant to the Act but faulted the district court for allowing the case to first go to trial. See id. at 24. In describing the breadth of claims prohibited by the Act, we stated:
We are convinced that both longstanding judicial policy and congressional restriction of federal jurisdiction in cases involving state tax administration make it the duty of federal courts to withhold relief when a state legislature has provided an adequate scheme whereby a taxpayer may maintain a suit to challenge a state tax.
Id.
Because Mississippi state law provided adequate relief for the plaintiffs’ claims, we held that the district court should have dismissed the case before reaching the merits. See id. at 29.
As in the cases above, Appellants seek declaratory relief, injunctive relief and damages pursuant to 42 U.S.C. § 1983 for taxes that they claim are unconstitutional and that are allegedly administered in a discriminatory fashion. Neither party disputes the district court’s holding that the taxes in question are of the type contemplated under the Tax Injunction Act. In addition, we have already held Mississippi law to provide an adequate remedy for such claims.1 Appellants’ claims are therefore indistinguishable for jurisdictional purposes from those brought in Home Builders and Bland. Accordingly, the district court correctly dismissed them as barred by the Act.
Appellants further argue that the Supreme Court’s decision in Hibbs v. Winn “cleared the way” for Appellants to bring their suit in federal court. See Hibbs, 542 U.S. 88, 124 S.Ct. 2276, 159 L.Ed.2d 172 (2004). However, Hibbs is readily distinguishable from the instant case. In Hibbs, the plaintiff taxpayers challenged the constitutionality of a state statute that provided tax credits to third parties attending private religious schools. See Hibbs, 542 U.S. at 92, 124 S.Ct. at 2281. The Court noted at the outset that “Plaintiffs-respondents do not contest their own tax liability. Nor do they seek to impede Arizona’s receipt of tax revenues.” Id. Based on these facts, the Court held that the Tax Injunction Act did not bar the plaintiffs’ *424claims. See id. at 111-12, 124 S.Ct. at 2292. We have therefore interpreted Hibbs to allow challenges to state tax laws in federal court “only where (1) a third party (not the taxpayer) files suit, and (2) the suit’s success will enrich, not deplete, the government entity’s coffers.” Henderson v. Stalder, 407 F.3d 351, 359 (5th Cir.2005) (footnote omitted).
In the instant case, Appellants are the alleged taxpayers, and they expressly seek relief from state tax laws as applied to them. Moreover, any consequent relief this court could fashion based on the alleged facts would involve the “disruption of ‘state tax administration’ ... specifically in relation to ‘the collection of revenue.’ ” Hibbs, 542 U.S. at 105, 124 S.Ct. at 2288 (quoting Cal. v. Grace Brethren Church, 457 U.S. 393, 410, 102 S.Ct. 2498, 73 L.Ed.2d 93 (1982) (additional cite omitted)). Accordingly, Appellants’ suit violates both prongs of the Hibbs test.
Finally, we note that Appellants focus much of their appellate arguments on seeking relief pursuant to 42 U.S.C. § 2000d rather than pursuant to 42 U.S.C. § 1983, although both statutes are cited in their complaint. As the language of the Tax Injunction Act makes clear, the bar to federal jurisdiction does not depend on the federal statute or constitutional provision that the tax law allegedly violates; rather, jurisdiction depends on whether the relief sought requires the federal court to “enjoin, suspend or restrain the assessment, levy or collection of any tax under State law[.]” See 28 U.S.C. § 1341; see also Hibbs, 542 U.S. at 99, 124 S.Ct. at 2284 (“To determine whether this litigation falls within [the Act’s] prohibition, it is appropriate, first, to identify the relief sought.”). As stated above, Appellants expressly seek declaratory and injunctive relief from the application of Mississippi state tax law, as well as compensatory and punitive damages for past improper tax assessments. These are precisely the kinds of relief barred by the Act.2 See, e.g., Home Builders, 143 F.3d at 1012-13; Bland, 463 F.2d at 24. Accordingly, we do not reach the question of whether Appellants could otherwise state a claim under 42 U.S.C. § 2000d.3 AFFIRMED.
Pursuant to 5th Cir R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
. The relevant state laws governing tax remedies in state court have not changed since Home Builders. See Home Builders, 143 F.3d at 1009; Miss.Code Ann § 11-13-11 (West 2010).
. Indeed, it is unclear what relief Appellants could seek based on the alleged facts that does not fall under the Act.
. Were we to reach the merits of this claim, however, we would note that 42 U.S.C. § 2000d bars unlawful "discrimination under any program or activity receiving Federal financial assistance.” Appellants have pointed to no case law or precedent that regards state tax collection as a "program or activity receiving Federal financial assistance.” Therefore, it is unclear how § 2000d would even apply in this case. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479517/ | PER CURIAM: *
The Federal Public Defender appointed to represent Fernando Cruz-Renteria has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Cruz-Renteria 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, *426and 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/8479525/ | KETHLEDGE, Circuit Judge.
Will C. Abner appeals the district court’s grant of summary judgment in favor of the defendants, who are officials in the Ohio Department of Rehabilitation and Correction. Abner’s suit alleges that the defendants violated his civil rights while he was in the Department’s custody. For the reasons stated in the district court’s March 27, 2009, Memorandum and Order, we agree that the statute of limitations barred all but one of Abner’s claims; and that for the remaining claim, Abner failed to rebut the defendants’ evidence. See Abner v. Collins, No. 1:06-CV-2178, 2009 WL 805173 (N.D.Ohio Mar.27, 2009).
The district court’s judgment is affirmed. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479528/ | ORDER
Over the course of a dozen years, Patrick Del Monico stole heavy equipment and other assets from one employer, used *610phony invoices to cheat that employer and another out of more than $1.1 million, and tried to wring an additional $2.4 million from the United States government with fictitious equipment-rental agreements. Then in bankruptcy proceedings he tried to hide some of that ill-gotten gain from creditors with falsified bank statements, an alias, and other material omissions and misrepresentations. After he was charged with these offenses and released on bond, Del Monico defrauded yet another victim of $2,000. By agreement with the government he pleaded guilty to mail and wire fraud, 18 U.S.C. §§ 1341, 1343, and bankruptcy fraud, id. § 157, in exchange for dismissal of 16 other counts. He was sentenced to a total of 96 months’ imprisonment and 3 years’ supervised release, and ordered to pay approximately $1.2 million in restitution. Del Monico filed a notice of appeal, but his appointed appellate lawyers seek to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because they cannot identify any nonfrivolous argument to pursue. Del Monico did not accept our invitation to respond to counsel’s submission, see Cir. R. 51(b), so we limit our review to the potential issues identified in counsel’s facially adequate brief, see United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Del Monico has told counsel that he wants his guilty pleas set aside, so counsel first consider whether there is any nonfrivolous basis for challenging the pleas. See United States v. Knox, 287 F.3d 667, 671 (7th Cir.2002). We agree with counsel, however, that the plea colloquy substantially complied with Federal Rule of Criminal Procedure 11. See United States v. Blalock, 321 F.3d 686, 688 (7th Cir.2003); Schuh, 289 F.3d at 975. Counsel identify minor omissions in the colloquy but correctly explain that we would consider each harmless. First, although the district court did not mention that Del Moni-co could stand on his earlier plea of not guilty, see Fed.R.Crim.P. 11(b)(1)(B), or that he could present evidence on his own behalf at trial, see Fed.R.Crim.P. 11(b)(1)(E), Del Monico already knew about these rights because both were addressed in the written plea agreement, see United States v. Driver, 242 F.3d 767, 771 (7th Cir.2001). Second, counsel observe that the district court did not advise Del Monico of his right to the assistance of counsel, see Fed.R.CrimP. 11(b)(1)(D), but Del Monico could not have been prejudiced by this error because he was accompanied by counsel during the colloquy, see United States v. Lovett, 844 F.2d 487, 491 (7th Cir.1988).
Counsel also question whether Del Monico could argue that the district court abused its discretion by refusing to let him withdraw his guilty pleas after he was diagnosed with anxiety and personality disorders. Del Monico had argued that these conditions, together with a “preoccupation” with unspecified “injustices” perpetrated by his victims, might have somehow affected his decision to plead guilty. But guilty pleas taken in substantial compliance with Rule 11 enjoy a presumption of verity. See United States v. Mays, 593 F.3d 603, 607 (7th Cir.2010); United States v. Patterson, 576 F.3d 431, 437 (7th Cir.2009), cert. denied, — U.S. -, 130 S.Ct. 1284, - L.Ed.2d - (2010). Del Monico waited to file his motion until after he had seen the presentence investigation report, and nowhere in that motion does he explain how his newly discovered disorders undermined the voluntariness of his guilty pleas. Indeed, the doctor who diagnosed Del Monico’s disorders also concluded that he understood the criminal proceedings and was competent. Thus, we agree with counsel that an appellate claim regarding the motion to withdraw his pleas would be frivolous.
*611Del Monico’s lawyers then evaluate whether he could challenge his prison sentence as unreasonable. The 96-month overall term falls within the correctly calculated guidelines range of 87 to 108 months and is presumed reasonable. See Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005). Counsel has found no basis to set aside that presumption, nor have we. At sentencing the district court addressed Del Monico’s principal arguments for a below-guidelines sentence, see United Stapes v. Villegas-Miranda, 579 F.3d 798, 801 (7th Cir.2009), including the asserted hardship on his family and his professed positive role in the lives of others. The court reasoned that other sentencing factors listed in 18 U.S.C. § 3553(a) outweighed those concerns and warranted a sentence near the middle of the guidelines range. The court emphasized Del Monico’s longstanding history of fraud, his lack of respect for the law, and the need to deter him and others like him. As counsel correctly conclude, it would be frivolous to press a reasonableness claim.'
Counsel also explore whether Del Monico could argue that the district court erred in not setting a precise number of drug tests that he must undergo while on supervised release. By statute the sentencing court must order a defendant to submit to a drug test upon release from imprisonment and then “at least 2 periodic drug tests thereafter (as determined by the court).” See 18 U.S.C. § 3583(d). The district court entered judgment on a standard form that requires Del Monico to be tested upon release and then submit to “at least two periodic drug tests thereafter, as determined by the court.” Cf. United States v. Bonanno, 146 F.3d 502, 511 (7th Cir.1998) (invalidating language in prior version of form that improperly delegated to probation officer the decision as to number of drug tests). We have not yet addressed whether § 3583(d) requires the district court to set any number greater than three at sentencing — and thus whether there is a problem with the current version of the standard form — but two of our sister circuits have answered no. See United States v. Garcia, 522 F.3d 855, 861 (9th Cir.2008); United States v. Lewandowski, 372 F.3d 470, 471 (1st Cir.2004). In any event, at sentencing Del Monico did not raise an issue about the number of drug tests, and even if it was error not to designate a precise number up front, we would not conclude that there was plain error because the district court remains free to modify the conditions of supervised release. See 18 U.S.C. § 3583(e)(2); Fed R.Crim. P. 32.1(c); United States v. Tejeda, 476 F.3d 471, 475 (7th Cir.2007); United States v. McKissic, 428 F.3d 719, 726 (7th Cir.2005). Thus, we agree with counsel that it would be frivolous to raise this challenge on appeal.
Finally, appellate counsel correctly point out that any challenge to the effectiveness of Del Monico’s trial counsel is best left to a collateral proceeding where a more complete record can be developed. See Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Harris, 394 F.3d 543, 557-58 (7th Cir.2005).
For the foregoing reasons, we GRANT counsel’s motion to withdraw and DISMISS Del Monico’s appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479532/ | ORDER
This is the second effort by Michael Partee to obtain relief from his sentence for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and distribution of a controlled substance, in violation of 21 U.S.C. § 841(a)(1). Previously, in a nonprecedential order, we affirmed Partee’s conviction but vacated his sentence and remanded the case for resen-tencing. See United States v. Partee, 273 Fed.Appx. 529 (7th Cir.2008). We also specifically held that Partee’s new sentence needed to reflect, among other things, our determination that his prior conviction in Georgia was a “controlled substance offense” for guidelines calculations. (This, along with other qualifications, made Partee a career offender under U.S.S.G. § 4B1.1.) Since that time, the Supreme Court has decided Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and Chambers v. United States, — U.S.-, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009). Partee now argues that those decisions require us to reconsider our earlier determination regarding the Georgia conviction, which the district court dutifully applied on remand.1 The govern*616ment, on the other hand, contends that, because our previous analysis did not violate Begay and Chambers, the “law of the case” doctrine precludes considering Par-tee’s challenge a second time.
In the first appeal, we rejected Partee’s argument that, “although he was charged in Georgia with selling cocaine, the sentence he received was necessarily only for possession, which is not a controlled substance offense for guideline calculations.” Partee, 273 Fed.Appx. at 532 (emphasis added). We agreed, however, that it was “somewhat mysterious” that Partee received a sentence of only two years, which was below Georgia’s mandatory minimum of five years for selling cocaine. Because there was no explanation in the record, we found that the district court could “examine the charging papers and the plea colloquy to determine what the offense was.” Id. at 533 (citing United States v. Sperberg, 432 F.3d 706 (7th Cir.2005)).2 Applying de novo review, we agreed with the district judge in Partee’s case that the indictment, transcript of the plea hearing, and judgment of conviction all “substantiate that he was convicted of selling cocaine.” Id. (emphasis added). As for the light sentence, we thought it was reasonable to conclude that Partee “caught a break.”
On remand, the district judge applied our ruling concerning the Georgia conviction (over defense counsel’s objection) and consequently sentenced Partee as a career offender. The judge ultimately imposed a term of 120 months on the gun count and 262 months on the distribution count, the terms to run concurrently. Partee now appeals, urging us to revisit our determination regarding the Georgia conviction in light of intervening Supreme Court precedent. This is a question of law, which we review de novo. See Moore v. Anderson, 222 F.3d 280, 283 (7th Cir.2000).
The “law of the case” doctrine would ordinarily prevent us from reconsidering our earlier determination regarding the Georgia conviction. See Agostini v. Felton, 521 U.S. 203, 236, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997); Starcon Int'l Inc. v. Int’l Bhd. of Boilermakers, 450 F.3d 276, 278 (7th Cir.2006). It is not improper to depart from a prior holding, however, if we are “convinced that it is clearly erroneous and would work a manifest injustice.” Arizona v. California, 460 U.S. 605, 618 n. 8, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983); see also Davis v. United States, 417 U.S. 333, 342, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) (holding that the court of appeals erred in adhering to the doctrine despite an intervening change in law). Partee argues that his case fits the bill because our previous analysis ran afoul of Begay and Chambers, as well as our interpretation of those opinions in United States v. Woods, 576 F.3d 400 (7th Cir.2009). Accordingly, we begin by briefly reviewing the relevant decisions.
In Begay, the Court held that New Mexico’s crime of driving under the influence of alcohol is not a “violent felony” within the meaning of the ACCA. In so holding, the Court reiterated that, when determining whether a crime is a violent felony, a categorical approach should be used. This means that judges should “consider the offense generically, that is to say, [they] examine it in terms of how the law defines *617the offense and not in terms of how an individual offender might have committed it on a particular occasion.” Begay, 553 U.S. at 141, 128 S.Ct. 1581 (citing Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and James v. United States, 550 U.S. 192, 208-09, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007)).
In Chambers, the Court held that Illinois’s crime of failure to report for penal confinement is not a “violent felony” within the meaning of the ACCA. Like Begay, Chambers reaffirmed the categorical approach described in Taylor and James. Importantly, the Court also looked to the state court record — that is, to the “charging document, plea agreement, jury instructions, or transcript of plea colloquy” — to determine the precise crime at issue. Chambers, 129 S.Ct. at 691 (citing Shepard v. United States, 544 U.S. 13, 25, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)).
In Woods, we held that Illinois’s crime of involuntary manslaughter was not a “crime of violence” for purposes of career offender guidelines. Because the categorical approach also applies to the guidelines’ career offender provisions, see United States v. Templeton, 543 F.3d 378, 380 (7th Cir.2008), we based our decision there on the Taylor/James line of cases.3 We also discussed the proper analysis when the statute at issue is divisible, meaning that it covers more than one offense. In that situation, we found, pursuant to Shepard, that courts may consult the charging document, the plea agreement or transcript of the plea colloquy, or some comparable judicial record. We emphasized, however, that “the additional materials permitted by Shepard may be used only to determine which crime within a statute the defendant committed, now how he committed that crime.” Woods, 576 F.3d at 405. We highlighted the latter point because language in our previous opinions (specifically, Templeton) could be read to the contrary.
Partee concedes that, because the Georgia statute under which he was charged was divisible,4 and there was (at best) some ambiguity regarding the specific offense of conviction, we properly consulted Shepard materials in the first appeal. His argument purportedly centers around the concern expressed in Woods that some of our recent eases had incorrectly applied the categorical approach. Specifically, Partee contends that, in examining the Shepard materials, we impermissibly looked to the particular facts of his case and determined how he committed the crime, not which crime he committed. We disagree. In the first appeal, as we previously discussed, we examined the state court indictment, plea colloquy, and judgment of conviction and determined that Partee “was convicted of selling cocaine.” Partee, 273 Fed.Appx. at 533 (emphasis added). We neither addressed nor relied upon Partee’s actual conduct. Because our analysis did not violate the categorical approach outlined in Begay, Chambers, or Woods, there is no “manifest injustice,” *618and the law of the case doctrine precludes Partee’s claim.
Partee’s real argument (although he tries to get around it to avoid the law of the case doctrine) is that our analysis was correct but our conclusion was wrong. But even if it were proper to reexamine that holding now, our decision would not change. As in the first appeal, the only evidence that Partee points to in support of his position is the length of his Georgia sentence. At oral argument, however, his counsel could not explain why one piece of the state court record should trump all the rest. We fully comprehend that Partee’s sentence was inconsistent with the applicable statute and possibly improper under Georgia law. But this is neither the time nor the place for Partee to collaterally attack his prior conviction.5 See Custis v. United States, 511 U.S. 485, 497, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994) (holding that the defendant could not use the federal sentencing forum to gain review of his state convictions). Here, the indictment says that Partee was charged with selling cocaine, the plea transcript indicates that Partee was pleading to the indictment as charged, and the judgment of conviction notes that Partee was convicted of counts one and two of the indictment, not lesser included offenses. Those pieces of the state court record resolve this appeal. This conclusion moots the other arguments Partee presses this second time around.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
. Although Partee introduced two other issues on appeal, at oral argument, his counsel agreed that disposition of the Georgia conviction issue requires us to either affirm the judgment in full or vacate the sentence and *616remand the case for resentencing. Thus, it is unnecessary for us to address the remaining issues.
. The specific holding of Sperberg — that the felony crime of driving while intoxicated (Sperberg had eight DUI convictions) was a “violent felony” within the meaning of the Armed Career Criminal Act (ACCA) — was overruled by Begay. See United States v. Jackson, 549 F.3d 1115, 1117-18 (7th Cir.2008). We did not, however, cite Sperberg for that point of law.
. Although the issue here specifically concerns whether a prior conviction qualifies as a “controlled substance offense" as opposed a “crime of violence,” neither party has argued that the categorical approach does not apply. Indeed, our sister circuits have expressly held the opposite. See, e.g., United States v. Bryant, 571 F.3d 147, 157 n. 7 (1st Cir.2009); United States v. Savage, 542 F.3d 959, 964 (2d Cir.2008).
. Subsection (a) of the Georgia statute prohibited “any person to ... possess ... any controlled substance” whereas subsection (b) prohibited "any person to ... sell ... any controlled substance.” Ga.Code Ann. §16-13-30. For violations of subsection (a), the term of imprisonment could be "not less than two years nor more than 15 years,” whereas for violations of subsection (b), the term could be “not less than five years nor more than 30 years.” Id.
. Of course, Partee, who as we noted the first time around probably "caught a break,” had no incentive to appeal. The same probably cannot be said for the state of Georgia. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479536/ | ORDER
Archie Bradfield pleaded guilty to one count of conspiring to possess and distribute crack cocaine. See 21 U.S.C. §§ 846, 841(a)(1). The district court held Brad-field responsible for over 3 kilograms of crack and sentenced him to a total of 242 months’ imprisonment. Bradfield appeals his conviction and sentence, but his appointed counsel has concluded that the appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Bradfield opposes counsel’s motion. See Cir. R. 51(b). We review only the potential issues identified by counsel in her facially adequate brief and by Bradfield in his response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Counsel first explains that Brad-field wishes to have his guilty plea set aside. Thus, counsel evaluates whether Bradfield could challenge the voluntariness of the plea or the adequacy of the plea colloquy. See FED.R.CRIM.P. 11; United States v. Knox, 287 F.3d 667, 671-72 (7th Cir.2002). Because Bradfielcl did not move to withdraw his guilty plea in the district court, we would review for plain error only. See United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Griffin, 521 F.3d 727, 730 (7th Cir.2008).
Counsel notes that the district court neglected to inform Bradfield of his right to have counsel appointed if he could not afford an attorney, see FED.R.CRIM.P. 11(b)(1)(D), and considers whether Brad-field could challenge the plea colloquy based on this single omission. But we agree with counsel that such an argument would be frivolous because Bradfield was well aware of this right given that he was represented by appointed counsel at the time of his change-of-plea hearing. See United States v. Driver, 242 F.3d 767, 769 (7th Cir.2001); United States v. Lovett, 844 F.2d 487, 491 (7th Cir.1988).
In his Rule 51(b) response, Brad-field proposes to challenge his guilty plea on the ground that it was induced by ineffective assistance of counsel. Bradfield lists several complaints about his lawyer's representation, including his assertion that counsel told him he would receive the 10-year statutory minimum if he pleaded guilty to conspiracy but otherwise would face a mandatory life sentence. If not for this bad advice, Bradfield says, he would have taken his case to trial. But there is no support for this claim in the record, and, as we often have explained, it is in a defendant's best interest that we decline to consider an ineffective-assistance claim on direct appeal so that it may be presented on collateral review where the necessary record can be developed. See Massaro v. Uwited States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Harris, 394 F.3d 543, 557-58 (7th Cir.2005).
Counsel also considers whether Bradfield could argue that the district court erred in ruling that statements Bradfield made as part of a proffer agreement were admissible at sentencing. According to the terms of the written agreement, any statements Bradfield made during his proffers could not "be *623used directly against [him] in any criminal ease, including sentencing.” But if Bradfield was to “subsequently testify or take a position contrary to the information [he] provid[ed]” then the agreement allowed the government to use Bradfield’s statements “as impeachment or rebuttal evidence.” Before sentencing Bradfield objected to the recommendation in his presentence report that he be held responsible for over 3 kilograms of crack. He argued that the drug estimates were based in part on unreliable hearsay statements made by his codefendant, Montego Rice. The government construed Brad-field’s objection as an attempt to dispute the amount of crack he apparently admitted in a proffer, and the prosecutor filed a notice of intent to introduce Bradfield’s proffer statements as rebuttal evidence. The district court concluded that the terms of the proffer agreement allowed the government to use Bradfield’s statements to the extent that his objection to the presentence report contradicted the statements he made during his proffer. But Bradfield abandoned his challenge to the drug quantity after Rice testified about the drug operation and corroborated the amount listed in the presentence report. Because Bradfield’s proffer statements were never introduced at sentencing, any error in the district court’s ruling would be harmless, see United States v. Singleton, 548 F.3d 589, 594 (7th Cir.2008), and any challenge to the court’s ruling would be frivolous.
Next, counsel and Bradfield both question whether it was proper for the district court to rely on Rice’s testimony at sentencing to determine the quantity of crack involved in the conspiracy. Counsel does not explain on what basis Bradfield could challenge the reliability of Rice’s testimony, but any such challenge would be futile because the district court’s decision to credit Rice’s testimony deserves great deference. See United States v. Rodgers, 245 F.3d 961, 968 (7th Cir.2001). At sentencing Bradfield did not cross-examine Rice about his description of the conspiracy or the accuracy of his account of the amount of crack involved. Rice’s testimony corroborated the information reflected in Bradfield’s presentence report, and the FBI agent confirmed that Rice’s description of Bradfield’s drug activities was consistent with the statements Rice made right after his arrest. Thus, there was sufficient indicia of reliability for the district court to consider Rice’s testimony. See U.S.S.G. § 6A1.3(a); United States v. Wilson, 502 F.3d 718, 721-22 (7th Cir.2007).
Bradfield advances an additional argument based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He contends that the district court erred by holding him responsible for an amount of crack that was not proven beyond a reasonable doubt. But Bradfield’s Apprendi argument is frivolous because he admitted during his plea colloquy to selling more than five grams of crack. This admission satisfies Apprendi’s mandate that drug quantities used to increase a statutory maximum must be proven beyond a reasonable doubt. See United States v. Bowlin, 534 F.3d 654, 662-63 (7th Cir.2008); United States v. Flagg, 481 F.3d 946, 949-50 (7th Cir.2007). Under 21 U.S.C. § 841(b)(1)(B), the maximum statutory penalty for distributing five or more grams of crack is 40 years’ imprisonment. The district judge sentenced Bradfield to a term of 242 months, far below the statutory maximum, and thus Bradfield’s Apprendi rights were not violated.
Finally, Bradfield argues that his conspiracy conviction violates the Double Jeopardy Clause of the Fifth Amendment. He apparently contends that his conviction is invalid because the conspiracy charge includes two objectives: possessing crack *624with intent to distribute and distributing the illegal drugs. But the crime of conspiracy punishes the illicit agreement, and that agreement can have multiple criminal objectives. Braverman v. United States, 317 U.S. 49, 53-54, 63 S.Ct. 99, 87 L.Ed. 23 (1942); United States v. Hughes, 310 F.3d 557, 560-61 (7th Cir.2002).
Accordingly, we GRANT counsel’s motion and DISMISS Bradfield’s appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479538/ | ORDER
Derrick Canady filed this suit under 42 U.S.C. § 1983, claiming that while he was in pretrial detention at the Cook County Jail, Correctional Officer Derrick Davis used excessive force against him in violation of his Fourteenth Amendment rights. He further claimed that other correctional officers failed to intervene and that the officers’ actions were part of a pattern and practice of misconduct established by Cook *626County. The district court granted summary judgment for the defendants, finding that Canady failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). This appeal followed.
Because Canady appeals from a grant of summary judgment, we construe the facts and draw all inferences in his favor. See Klebanowski v. Sheahan, 540 F.3d 633, 637 (7th Cir.2008). Canady was in his jail cell when Officer Davis was locking down the tier for the night. The two men began arguing, and Davis unlocked Canady’s cell door to confront him. Canady continued to argue a bit but then tried to walk the other way. As he turned away though, Davis hit him on the side of his head, knocked him down, and beat him until he lost consciousness. He was taken to the hospital and treated for a broken jaw, as well as gashes and trauma to his head and face. While in the hospital, Canady described the incident to two internal affairs investigators for the Cook County Sheriffs Department, and as a result of this investigation Davis was fired.
Canady did not file a prisoner grievance about the incident, choosing instead to file only this lawsuit. The defendants moved for summary judgment based on Canady’s failure to exhaust his administrative remedies; they relied in part on Canady’s deposition in which he admitted that he knew of the grievance process and how to request a grievance form, and that he did not file a grievance because he believed the process to be futile. The district court granted the motion, rejecting Canady’s contention that his participation in the internal affairs investigation satisfied the exhaustion requirements under the PLRA. The court then entered judgment for the defendants on Canady’s claims.
The PLRA provides that “[n]o action shall be brought with respect to prison conditions under section 1983 ... until such administrative remedies as are available are exhausted.” § 1997e(a). The term “prison conditions” as used in the PLRA, encompasses excessive-force claims such as Canady’s. See Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); Witzke v. Femal, 376 F.3d 744, 751 & n. 5 (7th Cir.2004). A prisoner must exhaust administrative remedies even if he believes that the process is futile or requests relief that the administrative body does not have power to grant. Booth v. Churner, 532 U.S. 731, 734, 741 n. 6, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001); Dole v. Chandler, 438 F.3d 804, 808-09 (7th Cir.2006). The exhaustion requirement is strictly enforced, in part because it allows prison officials to promptly correct errors internally and to develop a factual record before a case moves to federal court. Woodford v. Ngo, 548 U.S. 81, 94, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006); Smith v. Zachary, 255 F.3d 446, 450-51 (7th Cir.2001).
On appeal Canady, now proceeding pro se, concedes that he failed to exhaust his administrative remedies but contends for the first time that this omission should be excused because jail officials did not inform him of the grievance procedure and his attorney provided ineffective assistance by not making sure that he filed a grievance. Neither of these arguments helps his cause. As the defendants correctly assert, Canady waived any argument about excusing exhaustion by not first raising the argument in his summary judgment response. See Domka v. Portage County, Wis., 523 F.3d 776, 783 (7th Cir.2008); Econ. Folding Box Corp. v. Anchor Frozen Foods Corp., 515 F.3d 718, 720 (7th Cir.2008). “ ‘It is a well-settled rule that a party opposing a summary judgment motion must inform the trial judge of the reasons, legal or factual, why summary judgment should not be entered. If it does not do so, and loses the motion, it *627cannot raise such reasons on appeal.’ ” Domka, 523 F.3d at 783 (quoting Liberles v. County of Cook, 709 F.2d 1122, 1126 (7th Cir.1983)). As for Canady’s argument that his counsel was ineffective, there is no Sixth Amendment right to effective assistance of counsel in a civil case; Canady may raise complaints about his attorney only in a malpractice suit under state law. See Stanciel v. Gramley, 267 F.3d 575, 581 (7th Cir.2001).
Finally, we add one caveat: Canady’s failure to exhaust should have resulted in a dismissal without prejudice. See Burrell v. Powers, 431 F.3d 282, 285 (7th Cir.2005); Perez v. Wisconsin Dep’t of Corr., 182 F.3d 532, 535 (7th Cir.1999). While we uphold the district court’s conclusion that Canady failed to exhaust his administrative remedies, we VACATE the judgment and REMAND with instructions to clarify that the case is dismissed without prejudice. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479540/ | ORDER
On April 22, 2010, 603 F.3d 365, this court sitting en banc affirmed the judgment of the district court as modified. Indiana Protection and Advocacy Servs. v. Indiana Family and Social Services Admin., 603 F.3d 365 (7th Cir.2010) (“IPAS II”). The effect of this court’s mandate will be to affirm the district court’s order requiring the named state officials to make available to the plaintiff certain records regarding a mentally ill patient (identified in the court records and the court’s opinion as Patient 1) for inspection and copying.
The defendants intend to seek Supreme Court review and have moved to stay the mandate pending the conclusion of that Court’s review. The plaintiff opposes the motion. All participating judges agree that the motion should be denied.1 The district court has stayed its order pending resolution of this appeal. As I explain below as author of the merits opinion, this court sees no reason to delay the mandate or to prevent the district court from lifting its stay of its order pending possible Supreme Court review.
A party seeking a stay of a mandate pending resolution of a petition for a writ of certiorari must show that the petition will present a substantial question and that there is good cause for a stay. See Fed. R.App. P. 41(d)(2)(A); Books v. City of Elkhart, 239 F.3d 826, 827 (7th Cir.2001) (Ripple, J., in chambers) (granting stay where mandate would require permanent and expensive removal of stone monument on lawn of municipal building). The grant of a motion to stay the mandate “is far from a foregone conclusion.” 16AA Charles Alan Wright, Arthur R. Miller, Edward H. Cooper & Catherine T. Struve, Federal Practice and Procedure § 3987 (4th ed.2008). Instead, the party seeking the stay must demonstrate both a reasonable probability of success on the merits and irreparable injury absent a stay. See Bricklayers Local 21 v. Banner Restoration, Inc., 384 F.3d 911, 912 (7th Cir.2004) (Ripple, J., in chambers); Williams v. Chrans, 50 F.3d 1358, 1360 (7th Cir.1995) (per curiam); United States v. Holland, 1 F.3d 454, 456 (7th Cir.1993) (Ripple, J., in chambers).
To demonstrate a reasonable probability of success on the merits of the proposed certiorari petition, the applicant must show a reasonable probability that four Justices will vote to grant certiorari and a “fair prospect” that five Justices will vote to reverse the judgment of this court. See California v. American Stores Co., 492 U.S. 1301, 1306-07, 110 S.Ct. 1, 106 L.Ed.2d 616 (1989) (O’Connor, J., in chambers); see also United States v. Warner, 507 F.3d 508, 511 (7th Cir.2007) (Wood, J., in chambers); Williams, 50 F.3d at 1360. In resolving the applicants’ motion to stay, we consider the issues that the applicants plan to raise in the certiorari petition in the context of the case history, the Supreme Court’s treatment of other cases presenting similar issues, and the considerations that guide the Supreme Court in determining whether to issue a writ of certiorari. See Williams, 50 F.3d at 1361.
This court decided three questions that the defendants intend to ask the Supreme Court to review. First, all participating members of this court agreed that the Eleventh Amendment does not bar the plaintiff from seeking injunctive and declaratory relief against the individual state *632officials in their official capacities. Our decision disagreed on this point with a decision by the Fourth Circuit, Virginia v. Reinhard, 568 F.3d 110 (4th Cir.2009), cert. petition pending, No. 09-529. Such a direct circuit split provides a reasonably promising possibility for certiorari review.2
Second, a majority of this court held that the plaintiff has a right to sue under the PAIMI Act for injunctive and declaratory relief to obtain access to the records in question. This case appears to be the first one in which that specific question has been decided, though many other cases in circuit and district courts have assumed such a right under PAIMI and similar protection and advocacy statutes. See IPAS II, 603 F.3d at 380, 381 (collecting cases). One member of this court disagreed, indicating that there is room for reasonable disagreement on the point, though there is currently no direct circuit split.
Third, this court held that the peer review records in dispute were subject to the record access provisions of the PAIMI. We are the fifth circuit to have decided the issue, and all circuits are in agreement. See, e.g., Protection & Advocacy for Persons with Disabilities v. Mental Health & Addiction & Advocacy Servs., 448 F.3d 119, 128 (2d Cir.2006) (Sotomayor, J.); Missouri Protection & Advocacy Servs. v. Missouri Dep’t of Mental Health, 447 F.3d 1021, 1023 (8th Cir.2006); Center for Legal Advocacy v. Hammons, 323 F.3d 1262,-1270 (10th Cir.2003); Pennsylvania Protection & Advocacy, Inc., v. Houstoun, 228 F.3d 423, 428 (3d Cir.2000) (Alito, J.). However, a 1999 decision by the New Hampshire Supreme Court stands in opposition. See Disabilities Rights Center, Inc. v. New Hampshire Department of Corrections, 143 N.H. 674, 732 A.2d 1021 (1999). In spite of this apparent outlier, with all circuits in agreement this question does not appear to be promising for certio-rari review.
The defendants argue there is good cause for a stay of the mandate because they will suffer irreparable harm in the form of an “invasion of privacy” if they are required to allow the plaintiff to inspect and copy the disputed peer review records regarding Patient 1. However, the defendants fail to specify their basis for any privacy right or interest in the records under dispute. Does it lie with Patient 1? With the state care-giving institutions? With the doctors and other medical professionals who rendered treatment? In any case, to alleviate that concern, the plaintiff points out that if and when it is granted access to the records, it still will be required by law to maintain the confidentiality of those records. There is therefore little to no risk that the information the records contain would be publicly disclosed or that the information would be used for some purpose unrelated to the plaintiffs mandate, severely undercutting the defendants’ argument. Also, this negligible risk is outweighed by the plaintiffs interest in carrying out its obligation to protect and advocate on behalf of other mentally ill patients. That interest has been necessarily kept in suspense for the last several years of this litigation, and further delay is unwarranted.
In sum, the balance weighs against granting a stay of the mandate even if there is a reasonable possibility that cer-tiorari may be granted. The disclosure of information would be to an independent government agency with its own legal obli-
*633gations to maintain the confidentiality of the documents in question. The plaintiff has had to wait nearly four years after Patient l’s death for access to the peer review documents, stymying its ability to effectively protect and advocate on behalf of other individuals with mental illness. There will be no invasion of Patient l’s privacy, for Patient 1 is deceased. Whatever interests the caregiving entities or the doctors and other individual care-givers might have in the privacy of information about their treatment of Patient 1 will be adequately protected by the plaintiffs own legal obligations of confidentiality. Under these circumstances, a court order allowing the plaintiff access to the records but reserving the right to order the plaintiff to return all copies and derivative notes in the event that this court’s decision is reversed would give substantial protection to the defendants. Finally, as the defendants point out, that ongoing prospect for ordering return of documents would also prevent the case from becoming moot pending possible Supreme Court review. See Church of Scientology of California v. United States, 506 U.S. 9,13, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992). Accordingly, the motion to stay the mandate is denied.
. Judge Tinder has not participated in consideration of this appeal.
. On May 25, 2010, defendants filed a letter under Circuit Rule 28(j) attaching the Solicitor General's invited response in Virginia arguing that the Supreme Court should grant certiorari relying on, among other points, the conflict with our decision. The Rule 28(j) submission does not change the analysis of the pending motion. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479541/ | PER CURIAM.
Federal inmate Victor Villegas appeals the district court’s1 dismissal of his 28 U.S.C. § 2241 petition with prejudice. In his petition, Villegas alleged that he had been improperly denied 40 days of good time credit when a Disciplinary Hearing Officer (DHO) relied on insufficient evidence to determine that he had committed a disciplinary violation. After careful de novo review, see Hill v. Morrison, 349 F.3d 1089, 1091 (8th Cir.2003), we conclude that the district court did not err in its dismissal since Villegas’s petition showed that he had received a full hearing before the DHO, the DHO had made written findings sufficient to meet procedural due process requirements, and there was some evidence in the record supporting the DHO’s findings. See Superintendent v. Hill, 472 U.S. 445, 455-56, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985) (some evidence must support decision by prison disciplinary board to revoke good time credits; relevant question is whether there is any evidence in record that could support conclusion reached by disciplinary board); Dible v. Scholl, 506 F.3d 1106, 1110 (8th Cir.2007) (in prisoner disciplinary proceeding, prisoner must receive advance written notice of charges, opportunity to call witnesses and present defense, and written statement of evidence relied upon by fact finder and reasons for disciplinary action); cf. Mason v. Sargent, 898 F.2d 679, 679-80 *649(8th Cir.1990) (“some evidence” standard met where contraband was found in locker and inmate argued that another inmate had admitted placing it there).
Accordingly, we affirm. See 8th Cir. R. 47B.
. The Honorable Joan N. Ericksen, United States District Judge for the District of Minnesota, adopting the report and recommendations of Janie S. Mayeron, United States Magistrate Judge for the District of Minnesota. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479543/ | ORDER
On March 30, 2010, the Board of Immigration Appeals reopened the proceedings in this case, and then administratively closed the case. Therefore, there is no longer a final order of removal.
We withdraw the memorandum disposition filed on December 14, 2009.
We dismiss the petition for review. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479544/ | MEMORANDUM **
Jagdev Ram, a native and citizen of India, petitions for review of the Board of *686Immigration Appeals’ (“BIA”) order denying Ram’s motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Ordonez v. INS, 345 F.3d 777, 782 (9th Cir.2003), and we deny the petition for review.
The BIA did not abuse its discretion in denying Ram’s motion to reopen because Ram’s motion was untimely, see 8 C.F.R. § 1003.2(c)(2), and Ram failed to establish changed circumstances in India to qualify for the regulatory exception to the time limit for filing motions to reopen, see 8 C.F.R. § 1003.2(c)(3)(h); Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir.2004) (“The critical question is ... whether circumstances have changed sufficiently that a petitioner who previously did not have a legitimate claim for asylum now has a well-founded fear of future persecution.”).
Furthermore, we decline to reconsider Ram’s challenge to the agency denial of his claim for relief under the Convention Against Torture because his contentions have already been considered and rejected by this court. See Ram v. Ashcroft, 120 Fed.Appx. 120 (9th Cir.2005); see also Merritt v. Mackey, 932 F.2d 1317, 1320 (9th Cir.1991) (one panel of an appellate court will not reconsider questions which another panel has decided on a prior appeal in the same case).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479546/ | MEMORANDUM **
In these consolidated petitions, Ji Tong Lin, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of deportation, and protection under the Convention Against Torture (“CAT”) (No. 06-75274), and the BIA’s denial of his motion to reopen (No. 07-71699). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence findings of fact, Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir.2004), and for abuse of discretion the denial of a motion to reopen, Lin v. Ashcroft, 377 F.3d 1014, 1023 (9th Cir.2004). In petition No. 06-75274, we deny. In petition No. 07-71699, we deny in part and dismiss in part.
Substantial evidence supports the agency’s adverse credibility determination because the inconsistencies between Lin’s testimony and the documentary evidence with respect to both Lin’s claimed injuries, and his escort of three United States citizens into China, were material and go to the heart of his claim. See Don v. Gonzales, 476 F.3d 738, 741-43 (9th Cir.2007); see also Li, 378 F.3d at 963 (concluding the IJ properly considered and rejected petitioner’s explanation for inconsistent testimony). In the absence of credible testimony, Lin’s asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
*697Because Lin’s CAT claim is based on the same statements found to be not credible, and he fails to point to any other evidence in the record that compels the conclusion that it is more likely than not that he would be tortured if returned to China, substantial evidence supports the BIA’s denial of CAT. See id. at 1156-57.
Lin’s contention that the IJ failed to consider all of the evidence is belied by the record. See Almaghzar v. Gonzales, 457 F.3d 915, 921-22 (9th Cir.2006).
Finally, the BIA did not abuse its discretion in denying Lin’s motion to reopen because the BIA considered the evidence submitted and acted within its broad discretion in determining Lin did not show prima facie eligibility for the relief sought. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (the BIA may deny a motion to reopen for failure to establish a prima facie case for the underlying relief sought); see also Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (the BIA’s denial of a motion to reopen shall be reversed only if it is arbitrary, irrational, or contrary to the law).
We lack jurisdiction over Lin’s claim based upon fear of future economic persecution for planning to have a future third child in China because this specific issue was not exhausted before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.2004).
No. 06-75274: PETITION FOR REVIEW DENIED.
No. 07-71699: 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/8479548/ | MEMORANDUM **
Anushavan Harutyunyan, a native and citizen of Russia, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s (“U”) 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, Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir.2004), and we deny the petition for review.
Substantial evidence supports the IJ’s adverse credibility determination based on both the omission from Harutyunyan’s detailed declaration and direct testimony of the mob attack and police beating he testified about on cross-examination, see id. at 962-63, and the inconsistency between Ha-rutyunyan’s testimony and the medical document regarding the reasons for his hospitalization, see Goel v. Gonzales, 490 F.3d 735, 739 (9th Cir.2007) (inconsistencies between testimony and documentary evidence support an adverse credibility finding where inconsistencies go to the heart of the claim). Accordingly, in the absence of credible testimony, Harutyu-nyan’s asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
Substantial evidence also supports the agency’s denial of CAT relief because Ha-rutyunyan failed to demonstrate it is more likely than not he will be tortured in Russia. See Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th Cir.2009).
*700We do not address Harutyunyan’s contention that he established past persecution based on the harms he suffered in Chechnya and the filtration camp because the BIA did not address this contention, see Ramirez-Altamirano v. Holder, 563 F.3d 800, 804 (9th Cir.2009), and Harutyunyan does not claim that the BIA erred in failing to address the issue, see Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (issues not specifically raised and argued in a party’s opening brief are waived).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479550/ | MEMORANDUM **
In these consolidated cases, Han-min Wu, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) in No. 06-72569, and the BIA’s order denying his motions to reopen, reconsider, and accept a late filed brief in No. 06-74314. Our jurisdiction is governed 8 U.S.C. § 1252. We review for substantial evidence adverse credibility determinations, Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir.2008), we review for abuse of discretion denials of motions to reopen and reconsider, and we review claims of due process violations de novo, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002). We deny the petition for *733review in No. 06-72569, and deny in part and dismiss in part the petition for review in No. 06-74314.
Substantial evidence supports the agency’s adverse credibility finding based upon Wu’s failure to offer a compelling explanation for a conceded discrepancy between his testimony before the asylum officer and his testimony before the IJ regarding his family’s payment of money to secure his release from detention. See Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir.2004) (adverse credibility finding supported based upon discrepancies regarding the amount of a fine assessed for violation of one-child policy). Accordingly, in the absence of credible testimony, we deny the petition as to Wu’s asylum and withholding of removal claims. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
Because Wu’s CAT claim is based on the testimony the agency found not credible, and he points to no other evidence showing it is more likely than not he will be tortured if returned to China, we also deny the petition as to Wu’s CAT claim. See id. at 1156-57.
The BIA did not abuse its discretion in denying Wu's motion to reopen based upon ineffective assistance of counsel because Wu could not demonstrate counsel's failure to a file a timely brief to the BIA "may have affected the outcome of the proceedings." See Mohammed v. Gonzales, 400 F.3d 785, 794 (9th Cir.2005) (internal quotation omitted). In particular, the BIA considered and properly rejected Wu's contention in his untimely brief to the BIA that lack of a certffication process for interpreters appearing at asylum interviews prejudicially violated his due process rights. See Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000) (requiring a showing of prejudice to prevail on a procedural due process claim). Likewise, the BIA considered and rejected Wu’s challenge to the IJ’s adverse credibility finding, which was supported by substantial evidence. See Li, 378 F.3d at 962.
The BIA did not abuse its discretion in denying Wu’s motion to reconsider because Wu failed to identify any error of fact or law in the BIA’s April 20, 2006 order. See 8 C.F.R. § 1003.2(b)(1).
To the extent Wu contends the BIA abused its discretion in refusing to accept his late-filed brief, we lack jurisdiction over the BIA’s discretionary determination. See Zetino v. Holder, 596 F.3d 517, 524-25 (9th Cir.2010).
No. 06-72569: PETITION FOR REVIEW DENIED.
No. 06-74314: 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/8479526/ | KETHLEDGE, Circuit Judge.
Will C. Abner appeals the district court’s grant of summary judgment in favor of the defendants, who are officials in the Ohio Department of Rehabilitation and Correction. Abner’s suit alleges that the defendants violated his civil rights while he was in the Department’s custody. For the reasons stated in the district court’s March 27, 2009, Memorandum and Order, we agree that the statute of limitations barred all but one of Abner’s claims; and that for the remaining claim, Abner failed to rebut the defendants’ evidence. See Abner v. Collins, No. 1:06-CV-2178, 2009 WL 805173 (N.D.Ohio Mar.27, 2009).
The district court’s judgment is affirmed. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479527/ | ORDER
Over the course of a dozen years, Patrick Del Monico stole heavy equipment and other assets from one employer, used *610phony invoices to cheat that employer and another out of more than $1.1 million, and tried to wring an additional $2.4 million from the United States government with fictitious equipment-rental agreements. Then in bankruptcy proceedings he tried to hide some of that ill-gotten gain from creditors with falsified bank statements, an alias, and other material omissions and misrepresentations. After he was charged with these offenses and released on bond, Del Monico defrauded yet another victim of $2,000. By agreement with the government he pleaded guilty to mail and wire fraud, 18 U.S.C. §§ 1341, 1343, and bankruptcy fraud, id. § 157, in exchange for dismissal of 16 other counts. He was sentenced to a total of 96 months’ imprisonment and 3 years’ supervised release, and ordered to pay approximately $1.2 million in restitution. Del Monico filed a notice of appeal, but his appointed appellate lawyers seek to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because they cannot identify any nonfrivolous argument to pursue. Del Monico did not accept our invitation to respond to counsel’s submission, see Cir. R. 51(b), so we limit our review to the potential issues identified in counsel’s facially adequate brief, see United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Del Monico has told counsel that he wants his guilty pleas set aside, so counsel first consider whether there is any nonfrivolous basis for challenging the pleas. See United States v. Knox, 287 F.3d 667, 671 (7th Cir.2002). We agree with counsel, however, that the plea colloquy substantially complied with Federal Rule of Criminal Procedure 11. See United States v. Blalock, 321 F.3d 686, 688 (7th Cir.2003); Schuh, 289 F.3d at 975. Counsel identify minor omissions in the colloquy but correctly explain that we would consider each harmless. First, although the district court did not mention that Del Moni-co could stand on his earlier plea of not guilty, see Fed.R.Crim.P. 11(b)(1)(B), or that he could present evidence on his own behalf at trial, see Fed.R.Crim.P. 11(b)(1)(E), Del Monico already knew about these rights because both were addressed in the written plea agreement, see United States v. Driver, 242 F.3d 767, 771 (7th Cir.2001). Second, counsel observe that the district court did not advise Del Monico of his right to the assistance of counsel, see Fed.R.CrimP. 11(b)(1)(D), but Del Monico could not have been prejudiced by this error because he was accompanied by counsel during the colloquy, see United States v. Lovett, 844 F.2d 487, 491 (7th Cir.1988).
Counsel also question whether Del Monico could argue that the district court abused its discretion by refusing to let him withdraw his guilty pleas after he was diagnosed with anxiety and personality disorders. Del Monico had argued that these conditions, together with a “preoccupation” with unspecified “injustices” perpetrated by his victims, might have somehow affected his decision to plead guilty. But guilty pleas taken in substantial compliance with Rule 11 enjoy a presumption of verity. See United States v. Mays, 593 F.3d 603, 607 (7th Cir.2010); United States v. Patterson, 576 F.3d 431, 437 (7th Cir.2009), cert. denied, — U.S. -, 130 S.Ct. 1284, - L.Ed.2d - (2010). Del Monico waited to file his motion until after he had seen the presentence investigation report, and nowhere in that motion does he explain how his newly discovered disorders undermined the voluntariness of his guilty pleas. Indeed, the doctor who diagnosed Del Monico’s disorders also concluded that he understood the criminal proceedings and was competent. Thus, we agree with counsel that an appellate claim regarding the motion to withdraw his pleas would be frivolous.
*611Del Monico’s lawyers then evaluate whether he could challenge his prison sentence as unreasonable. The 96-month overall term falls within the correctly calculated guidelines range of 87 to 108 months and is presumed reasonable. See Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005). Counsel has found no basis to set aside that presumption, nor have we. At sentencing the district court addressed Del Monico’s principal arguments for a below-guidelines sentence, see United Stapes v. Villegas-Miranda, 579 F.3d 798, 801 (7th Cir.2009), including the asserted hardship on his family and his professed positive role in the lives of others. The court reasoned that other sentencing factors listed in 18 U.S.C. § 3553(a) outweighed those concerns and warranted a sentence near the middle of the guidelines range. The court emphasized Del Monico’s longstanding history of fraud, his lack of respect for the law, and the need to deter him and others like him. As counsel correctly conclude, it would be frivolous to press a reasonableness claim.'
Counsel also explore whether Del Monico could argue that the district court erred in not setting a precise number of drug tests that he must undergo while on supervised release. By statute the sentencing court must order a defendant to submit to a drug test upon release from imprisonment and then “at least 2 periodic drug tests thereafter (as determined by the court).” See 18 U.S.C. § 3583(d). The district court entered judgment on a standard form that requires Del Monico to be tested upon release and then submit to “at least two periodic drug tests thereafter, as determined by the court.” Cf. United States v. Bonanno, 146 F.3d 502, 511 (7th Cir.1998) (invalidating language in prior version of form that improperly delegated to probation officer the decision as to number of drug tests). We have not yet addressed whether § 3583(d) requires the district court to set any number greater than three at sentencing — and thus whether there is a problem with the current version of the standard form — but two of our sister circuits have answered no. See United States v. Garcia, 522 F.3d 855, 861 (9th Cir.2008); United States v. Lewandowski, 372 F.3d 470, 471 (1st Cir.2004). In any event, at sentencing Del Monico did not raise an issue about the number of drug tests, and even if it was error not to designate a precise number up front, we would not conclude that there was plain error because the district court remains free to modify the conditions of supervised release. See 18 U.S.C. § 3583(e)(2); Fed R.Crim. P. 32.1(c); United States v. Tejeda, 476 F.3d 471, 475 (7th Cir.2007); United States v. McKissic, 428 F.3d 719, 726 (7th Cir.2005). Thus, we agree with counsel that it would be frivolous to raise this challenge on appeal.
Finally, appellate counsel correctly point out that any challenge to the effectiveness of Del Monico’s trial counsel is best left to a collateral proceeding where a more complete record can be developed. See Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Harris, 394 F.3d 543, 557-58 (7th Cir.2005).
For the foregoing reasons, we GRANT counsel’s motion to withdraw and DISMISS Del Monico’s appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479529/ | ORDER
Floyd DeBerry was arrested with a gun in Indiana three months after he completed a federal prison term for distributing crack and began serving a term of supervised release. He pleaded guilty in the Northern District of Indiana to possessing a gun as a felon, 18 U.S.C. § 922(g)(1), and was sentenced to 57 months’ imprisonment, the low end of the guidelines range. DeBerry also admitted in the Northern District of Illinois, where his supervision for the drug crime was being monitored, that he violated the conditions of his release by possessing the gun. He was given a 21-month term of reimprisonment, to run consecutively to the § 922(g) sentence. We have already resolved DeBerry’s appeal from the Northern District of Indiana, see United States v. Deberry, 576 F.3d 708 (7th Cir.2009), and now address his appeal *613from the revocation of supervised release. DeBerry argues that he was denied the right to allocute at the revocation hearing.
The district court in Illinois conducted a hearing during which the parties discussed whether the district court in Indiana had considered DeBerry’s potential reincarcer-ation for violating the terms of his supervision when it sentenced him for possessing the gun, and whether the Illinois district court should take that question into consideration when determining an appropriate term of reimprisonment. After brief arguments from counsel, the court said, “I guess I need to hear from Mr. DeBerry.” DeBerry then explained his understanding of the Indiana sentence and told the court he was trying to be a lawful citizen and had the gun because he was concerned for his children’s safety. The court continued the hearing to another day so that it could review the transcript from the Northern District of Indiana.
When the hearing resumed, DeBerry’s counsel asked if DeBerry could address the court, and DeBerry argued that he should have received three instead of two points for acceptance of responsibility in the Northern District of Indiana. See U.S.S.G. § 3El.l(b). The district court replied that DeBerry would have to make that argument in an appeal from the § 922(g) conviction (we later resolved the issue against him, see Deberry, 576 F.3d at 711). After hearing arguments from counsel on the appropriate term of reimpris-onment for violating the terms of supervision, the court stated:
The range of 21 to 27 months seems appropriate to me and what I’m going to do is impose a 21-month sentence and I’m going to make that consecutive to what Mr. DeBerry is facing in the Indiana sentence.
It does seem to me that a serious sanction is warranted. And I realize that the range is discretionary, but I do think it’s appropriate in this case. It will be followed by an additional 2 years of supervised release.
Mr. Deberry, is there anything further that you want to say?
(Emphasis added.) DeBerry answered that he had not been trying to harm anyone and was trying to turn his life around. The term seemed harsh, he added, compared to the sentences other felons had received for § 922(g) violations. After listening to DeBerry the court repeated its conclusion that a consecutive term of 21 months was appropriate.
DeBerry argues on appeal that the district court deprived him of his right to allocution, see Fed. R. CRIM P. 32.1(b)(2)(E), by imposing the term of re-imprisonment before asking him if he had anything to say. That rule requires a court to ask the defendant if he wants to make a statement, to potentially mitigate punishment, before imposing a term of reimprisonment. United States v. O’Hallaren, III, 505 F.3d 633, 635 (7th Cir.2007); United States v. Pitre, 504 F.3d 657, 661-62 (7th Cir.2007). The requirement is not met simply by inviting the defendant to speak “at some point before the close” of the proceeding. United States v. Luepke, 495 F.3d 443, 449 (7th Cir.2007) (discussing parallel Fed. R. Crim. P. 32(i)(4)(A)(ii)). Instead, the district court must convey to the defendant that making a statement can influence the outcome. Id. Because De-Berry did not object at sentencing, we review for plain error, which requires us to determine whether error (1) occurred, (2) was plain, and (3) affected DeBerry’s substantial rights. See Pitre, 504 F.3d at 661. If these requirements are met, we may exercise discretion to reverse if we conclude that the error “ ‘seriously affects the fairness, integrity, or public reputation of judicial proceedings.’” O’Hallaren III, 505 F.3d at 636 (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed,2d 718 (1997)).
*614Here, the government confesses error, but we are still required to make an independent assessment. Nunez v. United States, 546 F.3d 450, 452-53 (7th Cir.2008); United States v. Wilson, 237 F.3d 827, 833 (7th Cir.2001). We agree with the parties that there was error, but we do not find that remand is required. When the district judge said on the first day of the revocation hearing that she wanted “to hear from Mr. DeBerry,” the court did not (if it was attempting to) invite DeBerry’s allocution. This is because the court is required to address the defendant personally. Pitre, 504 F.3d at 661-62. The court referred to DeBerry in the third person, presumably because it was still addressing counsel. See United States v. Noel, 581 F.3d 490, 502 (7th Cir.2009). Accordingly, before announcing that it was “going to impose a 21-month sentence” the court did not personally invite DeBerry to speak about matters that he thought should affect his term of reimprisonment. This was a plain error. See id. And it was also a violation of DeBerry’s substantial rights because we presume prejudice if there is any possibility the court would have imposed a shorter tern of reimprisonment if the court had allowed the defendant to speak before imposing the term. See O’Hallaren III, 505 F.3d at 636.
But we do not conclude that this error seriously affected “the fairness, integrity, or public reputation of judicial proceedings.” Id. This is because, even though the court may have technically violated Rule 32.1, it is apparent that DeBer-ry thought the statement “I need to hear from Mr. DeBerry” was his opportunity to inform the court of factors that might influence his term of reimprisonment. After the court opened discourse with DeBerry, he told the court that he had been looking for a job, that he moved out of Chicago to avoid trouble, and that he had children that he was trying to protect. DeBerry does not argue on appeal that he would have said more in mitigation, and the government has not offered any basis for its unreasoned conclusion that this discretionary element of the plain-error doctrine is satisfied. See Pitre, 504 F.3d at 662-63; United States v. Magwood, 445 F.3d 826, 830 (5th Cir.2006); United States v. Reyna, 358 F.3d 344, 352-53 (5th Cir.2004); United States v. Quintana, 300 F.3d 1227, 1231-32 (11th Cir.2002); United States v. Gerrow, 232 F.3d 831, 834 (11th Cir.2000) (per curiam); United States v. Karam, 201 F.3d 320, 330-31 (4th Cir.2000). Accordingly, we do not conclude that the failure to formally invite allocution undermined the integrity, fairness, or public reputation of the proceedings. See Noel, 581 F.3d at 503-04 (affirming sentence when there was no opportunity for allocution but defendant’s letter, which was structured like an allocution, was read out loud prior to imposition of sentence).
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479531/ | ORDER
This is the second effort by Michael Partee to obtain relief from his sentence for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and distribution of a controlled substance, in violation of 21 U.S.C. § 841(a)(1). Previously, in a nonprecedential order, we affirmed Partee’s conviction but vacated his sentence and remanded the case for resen-tencing. See United States v. Partee, 273 Fed.Appx. 529 (7th Cir.2008). We also specifically held that Partee’s new sentence needed to reflect, among other things, our determination that his prior conviction in Georgia was a “controlled substance offense” for guidelines calculations. (This, along with other qualifications, made Partee a career offender under U.S.S.G. § 4B1.1.) Since that time, the Supreme Court has decided Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and Chambers v. United States, — U.S.-, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009). Partee now argues that those decisions require us to reconsider our earlier determination regarding the Georgia conviction, which the district court dutifully applied on remand.1 The govern*616ment, on the other hand, contends that, because our previous analysis did not violate Begay and Chambers, the “law of the case” doctrine precludes considering Par-tee’s challenge a second time.
In the first appeal, we rejected Partee’s argument that, “although he was charged in Georgia with selling cocaine, the sentence he received was necessarily only for possession, which is not a controlled substance offense for guideline calculations.” Partee, 273 Fed.Appx. at 532 (emphasis added). We agreed, however, that it was “somewhat mysterious” that Partee received a sentence of only two years, which was below Georgia’s mandatory minimum of five years for selling cocaine. Because there was no explanation in the record, we found that the district court could “examine the charging papers and the plea colloquy to determine what the offense was.” Id. at 533 (citing United States v. Sperberg, 432 F.3d 706 (7th Cir.2005)).2 Applying de novo review, we agreed with the district judge in Partee’s case that the indictment, transcript of the plea hearing, and judgment of conviction all “substantiate that he was convicted of selling cocaine.” Id. (emphasis added). As for the light sentence, we thought it was reasonable to conclude that Partee “caught a break.”
On remand, the district judge applied our ruling concerning the Georgia conviction (over defense counsel’s objection) and consequently sentenced Partee as a career offender. The judge ultimately imposed a term of 120 months on the gun count and 262 months on the distribution count, the terms to run concurrently. Partee now appeals, urging us to revisit our determination regarding the Georgia conviction in light of intervening Supreme Court precedent. This is a question of law, which we review de novo. See Moore v. Anderson, 222 F.3d 280, 283 (7th Cir.2000).
The “law of the case” doctrine would ordinarily prevent us from reconsidering our earlier determination regarding the Georgia conviction. See Agostini v. Felton, 521 U.S. 203, 236, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997); Starcon Int'l Inc. v. Int’l Bhd. of Boilermakers, 450 F.3d 276, 278 (7th Cir.2006). It is not improper to depart from a prior holding, however, if we are “convinced that it is clearly erroneous and would work a manifest injustice.” Arizona v. California, 460 U.S. 605, 618 n. 8, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983); see also Davis v. United States, 417 U.S. 333, 342, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) (holding that the court of appeals erred in adhering to the doctrine despite an intervening change in law). Partee argues that his case fits the bill because our previous analysis ran afoul of Begay and Chambers, as well as our interpretation of those opinions in United States v. Woods, 576 F.3d 400 (7th Cir.2009). Accordingly, we begin by briefly reviewing the relevant decisions.
In Begay, the Court held that New Mexico’s crime of driving under the influence of alcohol is not a “violent felony” within the meaning of the ACCA. In so holding, the Court reiterated that, when determining whether a crime is a violent felony, a categorical approach should be used. This means that judges should “consider the offense generically, that is to say, [they] examine it in terms of how the law defines *617the offense and not in terms of how an individual offender might have committed it on a particular occasion.” Begay, 553 U.S. at 141, 128 S.Ct. 1581 (citing Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and James v. United States, 550 U.S. 192, 208-09, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007)).
In Chambers, the Court held that Illinois’s crime of failure to report for penal confinement is not a “violent felony” within the meaning of the ACCA. Like Begay, Chambers reaffirmed the categorical approach described in Taylor and James. Importantly, the Court also looked to the state court record — that is, to the “charging document, plea agreement, jury instructions, or transcript of plea colloquy” — to determine the precise crime at issue. Chambers, 129 S.Ct. at 691 (citing Shepard v. United States, 544 U.S. 13, 25, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)).
In Woods, we held that Illinois’s crime of involuntary manslaughter was not a “crime of violence” for purposes of career offender guidelines. Because the categorical approach also applies to the guidelines’ career offender provisions, see United States v. Templeton, 543 F.3d 378, 380 (7th Cir.2008), we based our decision there on the Taylor/James line of cases.3 We also discussed the proper analysis when the statute at issue is divisible, meaning that it covers more than one offense. In that situation, we found, pursuant to Shepard, that courts may consult the charging document, the plea agreement or transcript of the plea colloquy, or some comparable judicial record. We emphasized, however, that “the additional materials permitted by Shepard may be used only to determine which crime within a statute the defendant committed, now how he committed that crime.” Woods, 576 F.3d at 405. We highlighted the latter point because language in our previous opinions (specifically, Templeton) could be read to the contrary.
Partee concedes that, because the Georgia statute under which he was charged was divisible,4 and there was (at best) some ambiguity regarding the specific offense of conviction, we properly consulted Shepard materials in the first appeal. His argument purportedly centers around the concern expressed in Woods that some of our recent eases had incorrectly applied the categorical approach. Specifically, Partee contends that, in examining the Shepard materials, we impermissibly looked to the particular facts of his case and determined how he committed the crime, not which crime he committed. We disagree. In the first appeal, as we previously discussed, we examined the state court indictment, plea colloquy, and judgment of conviction and determined that Partee “was convicted of selling cocaine.” Partee, 273 Fed.Appx. at 533 (emphasis added). We neither addressed nor relied upon Partee’s actual conduct. Because our analysis did not violate the categorical approach outlined in Begay, Chambers, or Woods, there is no “manifest injustice,” *618and the law of the case doctrine precludes Partee’s claim.
Partee’s real argument (although he tries to get around it to avoid the law of the case doctrine) is that our analysis was correct but our conclusion was wrong. But even if it were proper to reexamine that holding now, our decision would not change. As in the first appeal, the only evidence that Partee points to in support of his position is the length of his Georgia sentence. At oral argument, however, his counsel could not explain why one piece of the state court record should trump all the rest. We fully comprehend that Partee’s sentence was inconsistent with the applicable statute and possibly improper under Georgia law. But this is neither the time nor the place for Partee to collaterally attack his prior conviction.5 See Custis v. United States, 511 U.S. 485, 497, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994) (holding that the defendant could not use the federal sentencing forum to gain review of his state convictions). Here, the indictment says that Partee was charged with selling cocaine, the plea transcript indicates that Partee was pleading to the indictment as charged, and the judgment of conviction notes that Partee was convicted of counts one and two of the indictment, not lesser included offenses. Those pieces of the state court record resolve this appeal. This conclusion moots the other arguments Partee presses this second time around.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
. Although Partee introduced two other issues on appeal, at oral argument, his counsel agreed that disposition of the Georgia conviction issue requires us to either affirm the judgment in full or vacate the sentence and *616remand the case for resentencing. Thus, it is unnecessary for us to address the remaining issues.
. The specific holding of Sperberg — that the felony crime of driving while intoxicated (Sperberg had eight DUI convictions) was a “violent felony” within the meaning of the Armed Career Criminal Act (ACCA) — was overruled by Begay. See United States v. Jackson, 549 F.3d 1115, 1117-18 (7th Cir.2008). We did not, however, cite Sperberg for that point of law.
. Although the issue here specifically concerns whether a prior conviction qualifies as a “controlled substance offense" as opposed a “crime of violence,” neither party has argued that the categorical approach does not apply. Indeed, our sister circuits have expressly held the opposite. See, e.g., United States v. Bryant, 571 F.3d 147, 157 n. 7 (1st Cir.2009); United States v. Savage, 542 F.3d 959, 964 (2d Cir.2008).
. Subsection (a) of the Georgia statute prohibited “any person to ... possess ... any controlled substance” whereas subsection (b) prohibited "any person to ... sell ... any controlled substance.” Ga.Code Ann. §16-13-30. For violations of subsection (a), the term of imprisonment could be "not less than two years nor more than 15 years,” whereas for violations of subsection (b), the term could be “not less than five years nor more than 30 years.” Id.
. Of course, Partee, who as we noted the first time around probably "caught a break,” had no incentive to appeal. The same probably cannot be said for the state of Georgia. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479533/ | ORDER
Amiel Cueto, a lawyer who was disbarred in 2004, sued the justices of the Supreme Court of Illinois and an officer of the Illinois Attorney Registration and Disciplinary Commission under 42 U.S.C. § 1988 for violations of his due-process right to fair and impartial proceedings. The district court dismissed his complaint, finding his claims against the justices barred by the Rooker-Feldman doctrine and his claim against the ARDC officer barred by the applicable státute of limitations. Cueto appeals, and we affirm the district court’s decision.
Cueto’s disbarment stemmed from his attempt to hide a client’s illegal gambling operation from federal investigators, for which he was convicted of conspiracy to defraud the United States, 18 U.S.C. § 371, and obstruction of justice, 18 U.S.C. § 1503. We upheld these convictions in United States v. Cueto, 151 F.3d 620, 624 (7th Cir.1998). Because of his criminal conduct, Cueto was suspended from practice in 1998 and disbarred in 2004. In 2008 he moved to vacate the disbarment order, and when the Supreme Court of Illinois denied, his motion, he turned to federal court.
Cueto’s complaint alleges three sets of due-process violations. First, Cueto claims that the justices refused in the disbarment proceedings to provide him with discovery, precise notice of his alleged misconduct, and other procedural safeguards. Second, Cueto claims that the ARDC officer falsely testified as an expert witness in the criminal trial and thereby tainted both the federal prosecution and the state disbarment. Third, Cueto tacks on a claim that is unrelated to his disbarment — that the justices sabotaged his defamation suits against two Illinois newspapers by assigning the cases to trial judges who would be biased against him.
The district court applied the Rooker-Feldman doctrine and dismissed both of Cueto’s claims against the justices. Under Rooker-Feldman, federal district courts lack jurisdiction to entertain suits brought by state-court losers to undo state-court judgments. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283-84, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005); District of Columbia Ct. of App. v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923). The district court concluded that Rooker-Feldman barred it from reviewing state-court judgments such as the disbarment order and the supervisory orders regarding case assignments in the defamation suits. The district court also dismissed Cueto’s claim against the ARDC officer as untimely under Illinois’s two-year statute of limitations for personal injuries, 735 ILCS 5/13-202 (he sued in 2008 but alleges that his claim accrued in 2004).
On appeal Cueto re-argues the merits of his claims but pays little attention to the *620Rooker-Feldman issue. He asserts only that the district court erred in applying the Rooker-Feldman doctrine because his claims are somehow “independent” of the judgments against him, and thus his claims can be resolved without undoing any state-court decision. But the gravamen of Cue-to’s complaint is that the state Supreme Court’s orders violated his rights, the disbarment order should be vacated, and the supervisory orders in his defamation trials should be nullified. He has not asserted any injury independent of the Supreme Court of Illinois’s disbarment proceedings or supervisory orders. He has therefore impermissibly attacked the state-court judgments in federal court, and such attacks are barred by Rooker-Feldman. See Gilbert v. Ill. State Bd. of Educ., 591 F.3d 896, 900 (7th Cir.2010); Levin v. ARDC, 74 F.3d 763, 767 (7th Cir.1996).
As to his damages claim against the ARDC officer, Cueto argues that the district court erred by applying a two-year statute of limitations for personal injuries, 735 ILCS 5/13-202, rather than a five-year “catch-all” statute, 735 ILCS 5/13-205. He reasons that his claim is not for a “personal injury” because he alleges pecuniary losses rather than bodily or psychological harm. We have repeatedly stated, however, that the statute of limitations for § 1983 claims in Illinois is two years, not five. See, e.g., Dominguez v. Hendley, 545 F.3d 585, 588 (7th Cir.2008), cert. denied, — U.S. -, 129 S.Ct. 2381, 173 L.Ed.2d 1293 (2009); Kalimara v. Ill. Dep’t of Corr., 879 F.2d 276 (7th Cir.1989). Cueto’s complaint, filed four years after his claim accrued, was untimely.
For the foregoing reasons, we AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479535/ | ORDER
Archie Bradfield pleaded guilty to one count of conspiring to possess and distribute crack cocaine. See 21 U.S.C. §§ 846, 841(a)(1). The district court held Brad-field responsible for over 3 kilograms of crack and sentenced him to a total of 242 months’ imprisonment. Bradfield appeals his conviction and sentence, but his appointed counsel has concluded that the appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Bradfield opposes counsel’s motion. See Cir. R. 51(b). We review only the potential issues identified by counsel in her facially adequate brief and by Bradfield in his response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Counsel first explains that Brad-field wishes to have his guilty plea set aside. Thus, counsel evaluates whether Bradfield could challenge the voluntariness of the plea or the adequacy of the plea colloquy. See FED.R.CRIM.P. 11; United States v. Knox, 287 F.3d 667, 671-72 (7th Cir.2002). Because Bradfielcl did not move to withdraw his guilty plea in the district court, we would review for plain error only. See United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Griffin, 521 F.3d 727, 730 (7th Cir.2008).
Counsel notes that the district court neglected to inform Bradfield of his right to have counsel appointed if he could not afford an attorney, see FED.R.CRIM.P. 11(b)(1)(D), and considers whether Brad-field could challenge the plea colloquy based on this single omission. But we agree with counsel that such an argument would be frivolous because Bradfield was well aware of this right given that he was represented by appointed counsel at the time of his change-of-plea hearing. See United States v. Driver, 242 F.3d 767, 769 (7th Cir.2001); United States v. Lovett, 844 F.2d 487, 491 (7th Cir.1988).
In his Rule 51(b) response, Brad-field proposes to challenge his guilty plea on the ground that it was induced by ineffective assistance of counsel. Bradfield lists several complaints about his lawyer's representation, including his assertion that counsel told him he would receive the 10-year statutory minimum if he pleaded guilty to conspiracy but otherwise would face a mandatory life sentence. If not for this bad advice, Bradfield says, he would have taken his case to trial. But there is no support for this claim in the record, and, as we often have explained, it is in a defendant's best interest that we decline to consider an ineffective-assistance claim on direct appeal so that it may be presented on collateral review where the necessary record can be developed. See Massaro v. Uwited States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Harris, 394 F.3d 543, 557-58 (7th Cir.2005).
Counsel also considers whether Bradfield could argue that the district court erred in ruling that statements Bradfield made as part of a proffer agreement were admissible at sentencing. According to the terms of the written agreement, any statements Bradfield made during his proffers could not "be *623used directly against [him] in any criminal ease, including sentencing.” But if Bradfield was to “subsequently testify or take a position contrary to the information [he] provid[ed]” then the agreement allowed the government to use Bradfield’s statements “as impeachment or rebuttal evidence.” Before sentencing Bradfield objected to the recommendation in his presentence report that he be held responsible for over 3 kilograms of crack. He argued that the drug estimates were based in part on unreliable hearsay statements made by his codefendant, Montego Rice. The government construed Brad-field’s objection as an attempt to dispute the amount of crack he apparently admitted in a proffer, and the prosecutor filed a notice of intent to introduce Bradfield’s proffer statements as rebuttal evidence. The district court concluded that the terms of the proffer agreement allowed the government to use Bradfield’s statements to the extent that his objection to the presentence report contradicted the statements he made during his proffer. But Bradfield abandoned his challenge to the drug quantity after Rice testified about the drug operation and corroborated the amount listed in the presentence report. Because Bradfield’s proffer statements were never introduced at sentencing, any error in the district court’s ruling would be harmless, see United States v. Singleton, 548 F.3d 589, 594 (7th Cir.2008), and any challenge to the court’s ruling would be frivolous.
Next, counsel and Bradfield both question whether it was proper for the district court to rely on Rice’s testimony at sentencing to determine the quantity of crack involved in the conspiracy. Counsel does not explain on what basis Bradfield could challenge the reliability of Rice’s testimony, but any such challenge would be futile because the district court’s decision to credit Rice’s testimony deserves great deference. See United States v. Rodgers, 245 F.3d 961, 968 (7th Cir.2001). At sentencing Bradfield did not cross-examine Rice about his description of the conspiracy or the accuracy of his account of the amount of crack involved. Rice’s testimony corroborated the information reflected in Bradfield’s presentence report, and the FBI agent confirmed that Rice’s description of Bradfield’s drug activities was consistent with the statements Rice made right after his arrest. Thus, there was sufficient indicia of reliability for the district court to consider Rice’s testimony. See U.S.S.G. § 6A1.3(a); United States v. Wilson, 502 F.3d 718, 721-22 (7th Cir.2007).
Bradfield advances an additional argument based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He contends that the district court erred by holding him responsible for an amount of crack that was not proven beyond a reasonable doubt. But Bradfield’s Apprendi argument is frivolous because he admitted during his plea colloquy to selling more than five grams of crack. This admission satisfies Apprendi’s mandate that drug quantities used to increase a statutory maximum must be proven beyond a reasonable doubt. See United States v. Bowlin, 534 F.3d 654, 662-63 (7th Cir.2008); United States v. Flagg, 481 F.3d 946, 949-50 (7th Cir.2007). Under 21 U.S.C. § 841(b)(1)(B), the maximum statutory penalty for distributing five or more grams of crack is 40 years’ imprisonment. The district judge sentenced Bradfield to a term of 242 months, far below the statutory maximum, and thus Bradfield’s Apprendi rights were not violated.
Finally, Bradfield argues that his conspiracy conviction violates the Double Jeopardy Clause of the Fifth Amendment. He apparently contends that his conviction is invalid because the conspiracy charge includes two objectives: possessing crack *624with intent to distribute and distributing the illegal drugs. But the crime of conspiracy punishes the illicit agreement, and that agreement can have multiple criminal objectives. Braverman v. United States, 317 U.S. 49, 53-54, 63 S.Ct. 99, 87 L.Ed. 23 (1942); United States v. Hughes, 310 F.3d 557, 560-61 (7th Cir.2002).
Accordingly, we GRANT counsel’s motion and DISMISS Bradfield’s appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479542/ | ORDER
On March 30, 2010, the Board of Immigration Appeals reopened the proceedings in this case, and then administratively closed the case. Therefore, there is no longer a final order of removal.
We withdraw the memorandum disposition filed on December 14, 2009.
We dismiss the petition for review. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479545/ | MEMORANDUM **
Jagdev Ram, a native and citizen of India, petitions for review of the Board of *686Immigration Appeals’ (“BIA”) order denying Ram’s motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Ordonez v. INS, 345 F.3d 777, 782 (9th Cir.2003), and we deny the petition for review.
The BIA did not abuse its discretion in denying Ram’s motion to reopen because Ram’s motion was untimely, see 8 C.F.R. § 1003.2(c)(2), and Ram failed to establish changed circumstances in India to qualify for the regulatory exception to the time limit for filing motions to reopen, see 8 C.F.R. § 1003.2(c)(3)(h); Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir.2004) (“The critical question is ... whether circumstances have changed sufficiently that a petitioner who previously did not have a legitimate claim for asylum now has a well-founded fear of future persecution.”).
Furthermore, we decline to reconsider Ram’s challenge to the agency denial of his claim for relief under the Convention Against Torture because his contentions have already been considered and rejected by this court. See Ram v. Ashcroft, 120 Fed.Appx. 120 (9th Cir.2005); see also Merritt v. Mackey, 932 F.2d 1317, 1320 (9th Cir.1991) (one panel of an appellate court will not reconsider questions which another panel has decided on a prior appeal in the same case).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479547/ | MEMORANDUM **
In these consolidated petitions, Ji Tong Lin, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of deportation, and protection under the Convention Against Torture (“CAT”) (No. 06-75274), and the BIA’s denial of his motion to reopen (No. 07-71699). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence findings of fact, Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir.2004), and for abuse of discretion the denial of a motion to reopen, Lin v. Ashcroft, 377 F.3d 1014, 1023 (9th Cir.2004). In petition No. 06-75274, we deny. In petition No. 07-71699, we deny in part and dismiss in part.
Substantial evidence supports the agency’s adverse credibility determination because the inconsistencies between Lin’s testimony and the documentary evidence with respect to both Lin’s claimed injuries, and his escort of three United States citizens into China, were material and go to the heart of his claim. See Don v. Gonzales, 476 F.3d 738, 741-43 (9th Cir.2007); see also Li, 378 F.3d at 963 (concluding the IJ properly considered and rejected petitioner’s explanation for inconsistent testimony). In the absence of credible testimony, Lin’s asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
*697Because Lin’s CAT claim is based on the same statements found to be not credible, and he fails to point to any other evidence in the record that compels the conclusion that it is more likely than not that he would be tortured if returned to China, substantial evidence supports the BIA’s denial of CAT. See id. at 1156-57.
Lin’s contention that the IJ failed to consider all of the evidence is belied by the record. See Almaghzar v. Gonzales, 457 F.3d 915, 921-22 (9th Cir.2006).
Finally, the BIA did not abuse its discretion in denying Lin’s motion to reopen because the BIA considered the evidence submitted and acted within its broad discretion in determining Lin did not show prima facie eligibility for the relief sought. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (the BIA may deny a motion to reopen for failure to establish a prima facie case for the underlying relief sought); see also Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (the BIA’s denial of a motion to reopen shall be reversed only if it is arbitrary, irrational, or contrary to the law).
We lack jurisdiction over Lin’s claim based upon fear of future economic persecution for planning to have a future third child in China because this specific issue was not exhausted before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.2004).
No. 06-75274: PETITION FOR REVIEW DENIED.
No. 07-71699: 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/8479551/ | MEMORANDUM **
In these consolidated cases, Han-min Wu, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) in No. 06-72569, and the BIA’s order denying his motions to reopen, reconsider, and accept a late filed brief in No. 06-74314. Our jurisdiction is governed 8 U.S.C. § 1252. We review for substantial evidence adverse credibility determinations, Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir.2008), we review for abuse of discretion denials of motions to reopen and reconsider, and we review claims of due process violations de novo, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002). We deny the petition for *733review in No. 06-72569, and deny in part and dismiss in part the petition for review in No. 06-74314.
Substantial evidence supports the agency’s adverse credibility finding based upon Wu’s failure to offer a compelling explanation for a conceded discrepancy between his testimony before the asylum officer and his testimony before the IJ regarding his family’s payment of money to secure his release from detention. See Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir.2004) (adverse credibility finding supported based upon discrepancies regarding the amount of a fine assessed for violation of one-child policy). Accordingly, in the absence of credible testimony, we deny the petition as to Wu’s asylum and withholding of removal claims. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
Because Wu’s CAT claim is based on the testimony the agency found not credible, and he points to no other evidence showing it is more likely than not he will be tortured if returned to China, we also deny the petition as to Wu’s CAT claim. See id. at 1156-57.
The BIA did not abuse its discretion in denying Wu's motion to reopen based upon ineffective assistance of counsel because Wu could not demonstrate counsel's failure to a file a timely brief to the BIA "may have affected the outcome of the proceedings." See Mohammed v. Gonzales, 400 F.3d 785, 794 (9th Cir.2005) (internal quotation omitted). In particular, the BIA considered and properly rejected Wu's contention in his untimely brief to the BIA that lack of a certffication process for interpreters appearing at asylum interviews prejudicially violated his due process rights. See Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000) (requiring a showing of prejudice to prevail on a procedural due process claim). Likewise, the BIA considered and rejected Wu’s challenge to the IJ’s adverse credibility finding, which was supported by substantial evidence. See Li, 378 F.3d at 962.
The BIA did not abuse its discretion in denying Wu’s motion to reconsider because Wu failed to identify any error of fact or law in the BIA’s April 20, 2006 order. See 8 C.F.R. § 1003.2(b)(1).
To the extent Wu contends the BIA abused its discretion in refusing to accept his late-filed brief, we lack jurisdiction over the BIA’s discretionary determination. See Zetino v. Holder, 596 F.3d 517, 524-25 (9th Cir.2010).
No. 06-72569: PETITION FOR REVIEW DENIED.
No. 06-74314: 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/8479552/ | MEMORANDUM **
Miguel Bravo-Romero appeals from the 57-month sentence imposed following his guilty-plea conviction for attempted entry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Bravo-Romero contends that the sentence is unreasonable because the district court failed to consider an unwarranted disparity between his sentence and the sentences of other similarly situated defendants. The record reflects that the district court considered the 18 U.S.C. § 3553(a) sentencing factors, including the need to avoid unwarranted sentencing disparities, before imposing a sentence at the bottom of the Guidelines range. Thus, the district court did not procedurally err in fashioning the sentence. See United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc); see also United States v. Marcial-Santiago, 447 F.3d 715, 719 (9th Cir.2006).
Bravo-Romero also contends that the sentence imposed is substantively unreasonable because the district court failed to *763apply this court’s reasoning in United States v. Amezcua-Vasquez, 567 F.3d 1050, 1054-56 (9th Cir.2009). The record reflects that the district court considered Bravo-Romero’s argument in this regard, but found the facts of the instant case to be distinguishable and therefore insufficient to justify a lower sentence based upon the holding of that case. Cf. id. at 1055-56. The sentence is substantively reasonable under the totality of the circumstances. See Gall v. United States, 552 U.S. 38, 51-52, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).
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/8479553/ | MEMORANDUM **
Miguel Bravo-Romero appeals from the 57-month sentence imposed following his guilty-plea conviction for attempted entry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Bravo-Romero contends that the sentence is unreasonable because the district court failed to consider an unwarranted disparity between his sentence and the sentences of other similarly situated defendants. The record reflects that the district court considered the 18 U.S.C. § 3553(a) sentencing factors, including the need to avoid unwarranted sentencing disparities, before imposing a sentence at the bottom of the Guidelines range. Thus, the district court did not procedurally err in fashioning the sentence. See United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc); see also United States v. Marcial-Santiago, 447 F.3d 715, 719 (9th Cir.2006).
Bravo-Romero also contends that the sentence imposed is substantively unreasonable because the district court failed to *763apply this court’s reasoning in United States v. Amezcua-Vasquez, 567 F.3d 1050, 1054-56 (9th Cir.2009). The record reflects that the district court considered Bravo-Romero’s argument in this regard, but found the facts of the instant case to be distinguishable and therefore insufficient to justify a lower sentence based upon the holding of that case. Cf. id. at 1055-56. The sentence is substantively reasonable under the totality of the circumstances. See Gall v. United States, 552 U.S. 38, 51-52, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).
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/8479554/ | MEMORANDUM **
Colvin McCright, a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action pursuant to 28 U.S.C. § 1915A. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000), and we affirm.
The district court properly dismissed the action because a judgment in McCright’s favor would necessarily imply the invalidity of his sentence, and his sen*796tence has not been invalidated. See Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2864, 129 L.Ed.2d 383 (1994). McCright’s reliance on Wilkinson v. Dotson, 544 U.S. 74, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005), is unpersuasive.
McCright’s motion for default judgment is denied.
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/8479559/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 340). It is
ORDERED AND ADJUDGED that the district court’s orders issued May 8, 2009, and June 1, 2009, be affirmed. The district court properly dismissed the complaint because the appellant sought damages from a federal district court judge in Maryland, who is absolutely immune from suit. See Atherton v. District of Columbia Office of Mayor, 567 F.3d 672, 682 (D.C.Cir.2009). The misconduct alleged by the appellant pertains to judicial functions and, therefore, is protected by this immunity. Id. To the extent the appellant raised claims against the other defendants, the district court lacked jurisdiction to hear them because the appellant essentially sought review of a decision rendered by a federal district court in Maryland. See 28 U.S.C. § 1294(1).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479555/ | MEMORANDUM **
Colvin McCright, a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action pursuant to 28 U.S.C. § 1915A. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000), and we affirm.
The district court properly dismissed the action because a judgment in McCright’s favor would necessarily imply the invalidity of his sentence, and his sen*796tence has not been invalidated. See Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2864, 129 L.Ed.2d 383 (1994). McCright’s reliance on Wilkinson v. Dotson, 544 U.S. 74, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005), is unpersuasive.
McCright’s motion for default judgment is denied.
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/8479558/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 340). It is
ORDERED AND ADJUDGED that the district court’s orders issued May 8, 2009, and June 1, 2009, be affirmed. The district court properly dismissed the complaint because the appellant sought damages from a federal district court judge in Maryland, who is absolutely immune from suit. See Atherton v. District of Columbia Office of Mayor, 567 F.3d 672, 682 (D.C.Cir.2009). The misconduct alleged by the appellant pertains to judicial functions and, therefore, is protected by this immunity. Id. To the extent the appellant raised claims against the other defendants, the district court lacked jurisdiction to hear them because the appellant essentially sought review of a decision rendered by a federal district court in Maryland. See 28 U.S.C. § 1294(1).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479561/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief and supplement filed by the appellant. See Fed. R.App. P. 84(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order issued December 8, 2009, be affirmed. The district court properly dismissed the appellant’s complaint as frivolous. The complaint contains factual allegations that are so implausible as to be “fantastic or delusional.” See Neitzke v. Williams, 490 U.S. 319, 328, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). The district court did not err in dismissing the complaint without the consent of the Attorney General, 31 U.S.C. § 3730(b)(1), because pro se plaintiffs may not file a qui tam action pursuant to the False Claims Act, and section 3730(b)(1) only applies to voluntary dismissals by qui tam plaintiffs. See United States ex rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 91-94 (2d Cir.2008).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479562/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order issued November 23, 2009, be affirmed. The district court did not abuse its discretion in dismissing the appellant’s complaint without prejudice for failure to comply with Fed.R.Civ.P. 8(a), which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” See Ciralsky v. CIA, 355 F.3d 661, 668-71 (D.C.Cir.2004).
*18Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479610/ | *284Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kirk E. Webster appeals the district court’s order granting summary judgment to Defendant in this action claiming violations of 42 U.S.C. §§ 1981, 1983 (2006) and Title VII of the Civil Rights Act of 1964, as amended. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Webster v. Gates, No. 8:07-cv-01107-RWT (D.Md. July 22, 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/8479563/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order issued November 23, 2009, be affirmed. The district court did not abuse its discretion in dismissing the appellant’s complaint without prejudice for failure to comply with Fed.R.Civ.P. 8(a), which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” See Ciralsky v. CIA, 355 F.3d 661, 668-71 (D.C.Cir.2004).
*18Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479567/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order issued December 8, 2009, be affirmed. The district court did not abuse its discretion in dismissing the appellant’s complaint for failure to comply with Fed.R.Civ.P. 8(a), which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” See Ciralsky v. CIA, 355 F.3d 661, 668-71 (D.C.Cir.2004).
Pursuant to D.C. Circuit Rule 36, this disposition 'will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479568/ | JUDGMENT
PER CURIAM.
This appeal from a judgment of the United States District Court for the District of Columbia was presented to the court, and briefed and argued by counsel. The court has afforded the issues full consideration and has determined that they do not warrant a published opinion. See D.C. Cir. R. 36(d). It is
ORDERED and ADJUDGED that the judgment of the district court be affirmed and the case remanded.
Appellant Jack Davis appeals from the district court’s denial of his motion for a new trial based upon “newly discovered evidence,” Fed.R.Crim.P. 33, following his conviction for narcotics violations. Find*20ing no merit in appellant’s contentions, we affirm the district court’s denial of his new trial motion. Neither appellant’s assertions regarding the traffic stop leading to his arrest nor his allegations relating to juror confusion satisfies the standard for “newly discovered evidence” warranting a new trial, see United States v. Johnson, 519 F.3d 478, 487 (D.C.Cir.2008), or an evidentiary hearing, see Fed.R.Evid. 606(b); Tanner v. United States, 483 U.S. 107, 127, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987); United States v. Stover, 329 F.3d 859, 865 (D.C.Cir.2003) (holding that Federal Rule of Evidence 606(b) “precludes taking testimony from the jurors ... regarding their belated misgivings”).
Davis also alleges that the district court erred in failing to consider his eligibility for a sentencing reduction, pursuant to 18 U.S.C. § 3582(c)(2), based on a Sentencing Guidelines amendment that lowered the base offense levels applicable to crack cocaine offenses, U.S.S.G. app. C, amend. 706 (Nov. 1, 2007). Appellant’s district court filings discussed the issue but did not clearly request resentencing. Rather, they stated that Davis sought to “preserve” his right to file for resentencing once the amendment became retroactive, which it did on March 3, 2008, U.S.S.G. app. C, amend. 713 (Mar. 3, 2008). Pursuant to our established procedure, we remand to permit appellant to submit a motion for a reduced sentence based on the Guidelines amendment. See United States v. Jones, 567 F.3d 712, 719 (D.C.Cir.2009).
The Clerk is directed to withhold issuance of the mandate herein until seven days after the disposition of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479571/ | JUDGMENT
PER CURIAM.
This appeal was presented to the court, and briefed and argued by counsel. The court has accorded the issues full consideration and has determined they do not warrant a published opinion. See D.C. Cir. Rule 36(d). It is
ORDERED that the appeal be dismissed as moot.
Appellants were indicted on April 17, 2008, for conspiracy to distribute drugs in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(l)(A)(ii), and 846. On May 8, 2009, the district court dismissed the indictment without prejudice for violation of the Speedy Trial Act, 18 U.S.C. § 3161-3174. In these consolidated appeals, appellants contend the district court abused its discretion by not dismissing the indictment with prejudice. Recognizing this court has not decided whether such an order is immediately appealable, they contend the dismissal order is a final order under 28 U.S.C. § 1291, or alternatively, is a collateral order under Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The government takes issue with both propositions, maintaining that a final order in a criminal case occurs only after sentencing, citing Parr v. United States, 351 U.S. 513, 518, 76 S.Ct. 912, 100 L.Ed. 1377 (1956), and that the third requirement of Cohen is not met because the Speedy Trial Act does not encompass a right not to be tried.
Appellants contend, however, that this court has jurisdiction because “[t]he issues pertinent to appellate disposition of this Speedy Trial Act claim have been sufficiently developed below, and judicial economy strongly favors resolution of this limited appeal issue now.” Appellants’ Br. 8. They maintain that they, as well as jurors and judicial personnel, should not be forced to endure a trial that may be unnecessary, and already be destined for reversal. They suggest that the legal analysis by the other circuit courts of appeal does not provide an adequate response to their challenge that the Speedy Trial Act recognizes the right not to be tried again, and absent immediate review, that right cannot be vindicated in a later appeal. In appellants’ view, this court should not adopt a rule that would mean that meaningful remedies for Speedy Trial Act violations are unavailable to those ultimately acquitted, or to those so worn down by the costs or stress of litigation that they ultimately decided to plead guilty.
While this appeal was pending, appellants were reindicted and, on February 2, 2010, codefendants Lonnell Glover and Jonathan Wright were found guilty of conspiracy in violation of 21 U.S.C. § 846; a third co-defendant, Robert Robbins, entered a conditional plea to conspiracy, preserving the right to appeal the Speedy Trial Act dismissal. See Oral Argument Tape of Apr. 16, 2010 at 11.57-12:45 (statement of counsel for appellee United States). Glover and Wright are scheduled to be sentenced on May 26, 2010. Because the circumstance underlying the merits of their appeal — the burden of trial — have been overtaken by events, the court dismisses the appeal as moot. See, e.g., United States v. Weston, 194 F.3d 145, 147-48 *22(D.C.Cir.1999) (citing Church of Scientology of California v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992)).
The court has no occasion to address appellants’ contention that once they were subjected to a second trial the district court’s abuse of discretion in dismissing the indictments without prejudice would be “effectively unreviewable on appeal.” United States v. Cisneros, 169 F.3d 763, 767 (D.C.Cir.1999) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978)). Appellants rooted their statutory challenge on the burden imposed by a trial upon rein-dictment. That burden has been fully realized.
Further, this case does not present circumstances capable of repetition yet evading review See, e.g., McBryde v. Committee to Rev. Cir. Council Conduct, 264 F.3d 52, 55-56 (D.C.Cir.2001); cf. Gerstein v. Pugh, 420 U.S. 103, 111 n. 11, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). Had appellants filed a motion to expedite the appeal, the court likely could had heard the appeal before completion of appellants’ trial upon rein-dictment. Appellants will still have an opportunity to be heard on the merits of their Speedy Trial Act contention after their sentencing.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479572/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the amended brief and appendix filed by appellant. See Fed. RApp. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed February 24, 2010, dismissing appellant’s complaint for lack of subject matter jurisdiction, be affirmed. The complaint is an outgrowth of an ongoing matter in D.C. Superior Court. United States district courts do not have authority to review or otherwise interfere with ongoing D.C. Superior Court matters. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486, 103 S.Ct. *231303, 75 L.Ed.2d 206 (1983) (United States district courts do not have jurisdiction over challenges to state court decisions in particular cases arising out of judicial proceedings even if those challenges allege that the state court’s action was unconstitutional); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416, 44 S.Ct. 149, 68 L.Ed. 362 (1923) (U.S. district court has no authority to review final determination of state court); Richardson v. District of Columbia Court of Appeals, 83 F.3d 1513, 1515 (D.C.Cir.1996) (approving application of Rooker-Feldman to decisions of lower state courts, such as D.C. Superior Court).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479566/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order issued December 8, 2009, be affirmed. The district court did not abuse its discretion in dismissing the appellant’s complaint for failure to comply with Fed.R.Civ.P. 8(a), which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” See Ciralsky v. CIA, 355 F.3d 661, 668-71 (D.C.Cir.2004).
Pursuant to D.C. Circuit Rule 36, this disposition 'will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479569/ | JUDGMENT
PER CURIAM.
This appeal from a judgment of the United States District Court for the District of Columbia was presented to the court, and briefed and argued by counsel. The court has afforded the issues full consideration and has determined that they do not warrant a published opinion. See D.C. Cir. R. 36(d). It is
ORDERED and ADJUDGED that the judgment of the district court be affirmed and the case remanded.
Appellant Jack Davis appeals from the district court’s denial of his motion for a new trial based upon “newly discovered evidence,” Fed.R.Crim.P. 33, following his conviction for narcotics violations. Find*20ing no merit in appellant’s contentions, we affirm the district court’s denial of his new trial motion. Neither appellant’s assertions regarding the traffic stop leading to his arrest nor his allegations relating to juror confusion satisfies the standard for “newly discovered evidence” warranting a new trial, see United States v. Johnson, 519 F.3d 478, 487 (D.C.Cir.2008), or an evidentiary hearing, see Fed.R.Evid. 606(b); Tanner v. United States, 483 U.S. 107, 127, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987); United States v. Stover, 329 F.3d 859, 865 (D.C.Cir.2003) (holding that Federal Rule of Evidence 606(b) “precludes taking testimony from the jurors ... regarding their belated misgivings”).
Davis also alleges that the district court erred in failing to consider his eligibility for a sentencing reduction, pursuant to 18 U.S.C. § 3582(c)(2), based on a Sentencing Guidelines amendment that lowered the base offense levels applicable to crack cocaine offenses, U.S.S.G. app. C, amend. 706 (Nov. 1, 2007). Appellant’s district court filings discussed the issue but did not clearly request resentencing. Rather, they stated that Davis sought to “preserve” his right to file for resentencing once the amendment became retroactive, which it did on March 3, 2008, U.S.S.G. app. C, amend. 713 (Mar. 3, 2008). Pursuant to our established procedure, we remand to permit appellant to submit a motion for a reduced sentence based on the Guidelines amendment. See United States v. Jones, 567 F.3d 712, 719 (D.C.Cir.2009).
The Clerk is directed to withhold issuance of the mandate herein until seven days after the disposition of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479570/ | JUDGMENT
PER CURIAM.
This appeal was presented to the court, and briefed and argued by counsel. The court has accorded the issues full consideration and has determined they do not warrant a published opinion. See D.C. Cir. Rule 36(d). It is
ORDERED that the appeal be dismissed as moot.
Appellants were indicted on April 17, 2008, for conspiracy to distribute drugs in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(l)(A)(ii), and 846. On May 8, 2009, the district court dismissed the indictment without prejudice for violation of the Speedy Trial Act, 18 U.S.C. § 3161-3174. In these consolidated appeals, appellants contend the district court abused its discretion by not dismissing the indictment with prejudice. Recognizing this court has not decided whether such an order is immediately appealable, they contend the dismissal order is a final order under 28 U.S.C. § 1291, or alternatively, is a collateral order under Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The government takes issue with both propositions, maintaining that a final order in a criminal case occurs only after sentencing, citing Parr v. United States, 351 U.S. 513, 518, 76 S.Ct. 912, 100 L.Ed. 1377 (1956), and that the third requirement of Cohen is not met because the Speedy Trial Act does not encompass a right not to be tried.
Appellants contend, however, that this court has jurisdiction because “[t]he issues pertinent to appellate disposition of this Speedy Trial Act claim have been sufficiently developed below, and judicial economy strongly favors resolution of this limited appeal issue now.” Appellants’ Br. 8. They maintain that they, as well as jurors and judicial personnel, should not be forced to endure a trial that may be unnecessary, and already be destined for reversal. They suggest that the legal analysis by the other circuit courts of appeal does not provide an adequate response to their challenge that the Speedy Trial Act recognizes the right not to be tried again, and absent immediate review, that right cannot be vindicated in a later appeal. In appellants’ view, this court should not adopt a rule that would mean that meaningful remedies for Speedy Trial Act violations are unavailable to those ultimately acquitted, or to those so worn down by the costs or stress of litigation that they ultimately decided to plead guilty.
While this appeal was pending, appellants were reindicted and, on February 2, 2010, codefendants Lonnell Glover and Jonathan Wright were found guilty of conspiracy in violation of 21 U.S.C. § 846; a third co-defendant, Robert Robbins, entered a conditional plea to conspiracy, preserving the right to appeal the Speedy Trial Act dismissal. See Oral Argument Tape of Apr. 16, 2010 at 11.57-12:45 (statement of counsel for appellee United States). Glover and Wright are scheduled to be sentenced on May 26, 2010. Because the circumstance underlying the merits of their appeal — the burden of trial — have been overtaken by events, the court dismisses the appeal as moot. See, e.g., United States v. Weston, 194 F.3d 145, 147-48 *22(D.C.Cir.1999) (citing Church of Scientology of California v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992)).
The court has no occasion to address appellants’ contention that once they were subjected to a second trial the district court’s abuse of discretion in dismissing the indictments without prejudice would be “effectively unreviewable on appeal.” United States v. Cisneros, 169 F.3d 763, 767 (D.C.Cir.1999) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978)). Appellants rooted their statutory challenge on the burden imposed by a trial upon rein-dictment. That burden has been fully realized.
Further, this case does not present circumstances capable of repetition yet evading review See, e.g., McBryde v. Committee to Rev. Cir. Council Conduct, 264 F.3d 52, 55-56 (D.C.Cir.2001); cf. Gerstein v. Pugh, 420 U.S. 103, 111 n. 11, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). Had appellants filed a motion to expedite the appeal, the court likely could had heard the appeal before completion of appellants’ trial upon rein-dictment. Appellants will still have an opportunity to be heard on the merits of their Speedy Trial Act contention after their sentencing.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479573/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the amended brief and appendix filed by appellant. See Fed. RApp. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed February 24, 2010, dismissing appellant’s complaint for lack of subject matter jurisdiction, be affirmed. The complaint is an outgrowth of an ongoing matter in D.C. Superior Court. United States district courts do not have authority to review or otherwise interfere with ongoing D.C. Superior Court matters. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486, 103 S.Ct. *231303, 75 L.Ed.2d 206 (1983) (United States district courts do not have jurisdiction over challenges to state court decisions in particular cases arising out of judicial proceedings even if those challenges allege that the state court’s action was unconstitutional); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416, 44 S.Ct. 149, 68 L.Ed. 362 (1923) (U.S. district court has no authority to review final determination of state court); Richardson v. District of Columbia Court of Appeals, 83 F.3d 1513, 1515 (D.C.Cir.1996) (approving application of Rooker-Feldman to decisions of lower state courts, such as D.C. Superior Court).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479574/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed December 30, 2009, be affirmed. The district court properly dismissed this action as frivolous. See 28 U.S.C. § 1915(e)(2)(B); Denton v. Hernandez, 504 U.S. 25, 32-33, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992) (court may dismiss a claim as frivolous if the facts alleged are “clearly baseless”). Claims like those of appellant, involving “bizarre conspiracy theories, [or] fantastic government manipulations of [one’s] will or mind,” Best v. Kelly, 39 F.3d 328, 330-31 (D.C.Cir.1994), are “obviously frivolous,” Hagans v. Lavine, 415 U.S. 528, 537, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479575/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed December 30, 2009, be affirmed. The district court properly dismissed this action as frivolous. See 28 U.S.C. § 1915(e)(2)(B); Denton v. Hernandez, 504 U.S. 25, 32-33, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992) (court may dismiss a claim as frivolous if the facts alleged are “clearly baseless”). Claims like those of appellant, involving “bizarre conspiracy theories, [or] fantastic government manipulations of [one’s] will or mind,” Best v. Kelly, 39 F.3d 328, 330-31 (D.C.Cir.1994), are “obviously frivolous,” Hagans v. Lavine, 415 U.S. 528, 537, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
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