url stringlengths 56 59 | text stringlengths 3 913k | downloaded_timestamp stringclasses 1 value | created_timestamp stringlengths 10 10 |
|---|---|---|---|
https://www.courtlistener.com/api/rest/v3/opinions/8479577/ | 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 appendix 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 February 24, 2010, dismissing appellant’s complaint for lack of subject matter jurisdiction, be affirmed. The district courts of the United States are “courts of limited jurisdiction. They possess only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). The district courts have jurisdiction in “federal question” cases, i.e., civil actions arising under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. The district courts also have jurisdiction in “diversity” cases, i.e., civil actions between citizens of different U.S. states or between U.S. citizens and foreign citizens or foreign states, provided the matter in controversy exceeds $75,000. 28 U.S.C. § 1332. In this case, because appellant established neither federal-question jurisdiction nor diversity jurisdiction (no amount in controversy was pleaded), the district court lacked jurisdiction.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published.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/8479579/ | 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 accorded the issues full consideration and has determined that they do not warrant a published opinion. See D.C.Cir. Rule 36(d). It is
ORDERED and ADJUDGED that the judgment of the district court be affirmed.
The National Institutes of Health (NIH) failed to hire appellant Syed Rafi for twelve positions for which he applied between 1993 and 1998. Rafi alleges that the failures to hire constituted discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. We affirm the district court’s dismissal of Rafi’s claims as to ten of the positions on the ground that he failed to exhaust his administrative remedies in a timely fashion. Rafi did not contact an NIH counselor until February 10, 1998— long after the 45-day deadline. See 29 C.F.R. § 1614.105(a). He contends that he did not realize he had been discriminated against until he received a letter from NIH on January 23, 1998, and that accordingly, he “did not know and reasonably should not have ... known that the discriminatory matter or personnel action occurred” until that date. Id. § 1614.105(a)(2). But the district court correctly concluded that there was no material difference between the January 1998 letter and a letter that Rafi received on July 21,1997.
We affirm the district court’s decision to direct a verdict as to the remaining two claims. Raff offered no evidence at trial from which a reasonable jury could have concluded that the NIH was actually “seeking applicants” for the two positions he sought, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a required component of the case because the absence of an available position is one of the “most common nondiscriminatory reasons for [a] plaintiffs rejection,” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Finally, we find no abuse of discretion in the district court’s response to Rafi’s requests for discovery.
The Clerk is directed to withhold the issuance of the mandate herein until seven days after the disposition of any timely petition for rehearing. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41(a)(1). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479615/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Etty Tham, a native and citizen of Indonesia, petitions for review of an order of the Board of Immigration Appeals (Board) denying her motion to reopen. We have reviewed the administrative record and find no abuse of discretion in the denial of relief on Tham’s motion. See 8 C.F.R. § 1003.2(a) (2009). We accordingly deny the petition for review for the reasons stated by the Board. See In re: Tham (B.I.A. Nov. 20, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479576/ | 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 appendix 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 February 24, 2010, dismissing appellant’s complaint for lack of subject matter jurisdiction, be affirmed. The district courts of the United States are “courts of limited jurisdiction. They possess only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). The district courts have jurisdiction in “federal question” cases, i.e., civil actions arising under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. The district courts also have jurisdiction in “diversity” cases, i.e., civil actions between citizens of different U.S. states or between U.S. citizens and foreign citizens or foreign states, provided the matter in controversy exceeds $75,000. 28 U.S.C. § 1332. In this case, because appellant established neither federal-question jurisdiction nor diversity jurisdiction (no amount in controversy was pleaded), the district court lacked jurisdiction.
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/8479578/ | 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 accorded the issues full consideration and has determined that they do not warrant a published opinion. See D.C.Cir. Rule 36(d). It is
ORDERED and ADJUDGED that the judgment of the district court be affirmed.
The National Institutes of Health (NIH) failed to hire appellant Syed Rafi for twelve positions for which he applied between 1993 and 1998. Rafi alleges that the failures to hire constituted discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. We affirm the district court’s dismissal of Rafi’s claims as to ten of the positions on the ground that he failed to exhaust his administrative remedies in a timely fashion. Rafi did not contact an NIH counselor until February 10, 1998— long after the 45-day deadline. See 29 C.F.R. § 1614.105(a). He contends that he did not realize he had been discriminated against until he received a letter from NIH on January 23, 1998, and that accordingly, he “did not know and reasonably should not have ... known that the discriminatory matter or personnel action occurred” until that date. Id. § 1614.105(a)(2). But the district court correctly concluded that there was no material difference between the January 1998 letter and a letter that Rafi received on July 21,1997.
We affirm the district court’s decision to direct a verdict as to the remaining two claims. Raff offered no evidence at trial from which a reasonable jury could have concluded that the NIH was actually “seeking applicants” for the two positions he sought, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a required component of the case because the absence of an available position is one of the “most common nondiscriminatory reasons for [a] plaintiffs rejection,” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Finally, we find no abuse of discretion in the district court’s response to Rafi’s requests for discovery.
The Clerk is directed to withhold the issuance of the mandate herein until seven days after the disposition of any timely petition for rehearing. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41(a)(1). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479582/ | 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 motion to “save evidence and investigate” 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 orders issued September 2, 2009, and October 9, 2009, be affirmed. The district court properly dismissed the appellant’s complaint for damages and in-junctive relief pursuant to 28 U.S.C. *28§ 1915A(b)(l). The claims of prosecutorial misconduct in the appellant’s complaint, if successful, would have a probabilistic effect of invalidating his conviction; therefore, he must first demonstrate that his conviction has been reversed on direct appeal, expunged by executive order, or called in question by a federal court’s issuance of a writ of habeas corpus. See Razzoli v. Federal Bureau of Prisons, 230 F.3d 371, 373-76 (D.C.Cir.2000); see also Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997) (applying Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), to bar a state prisoner’s claims for declaratory and injunctive relief in addition to money damages). To the extent that the appellant seeks injunctive relief to compel the Attorney General to investigate his claims of prosecutorial misconduct, the appellant failed to state a claim for such relief because the Attorney General has prosecuto-rial discretion to determine whether to investigate any alleged misconduct by federal prosecutors. See 28 U.S.C. § 526(a)(1) (“The Attorney General may investigate ... the United States attorneys ... ”) (emphasis added); see also United States v. Nixon, 418 U.S. 683, 693, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (“[T]he Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.”). The district court did not err in denying the appellant’s motion for leave to amend the complaint because he “cannot possibly win relief’ on his claims of prosecutorial misconduct. See Davis v. District of Columbia, 158 F.3d 1342, 1349 (D.C.Cir.1998). It is
FURTHER ORDERED that the motion to “save evidence and investigate” be dismissed as moot.
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/8479639/ | ORDER
Between July and November 2007, Luis Contreras and his codefendant, Corey *553Williams, sold three guns to an undercover federal agent. After his arrest Contreras confessed to pai'ticipating in these sales. He also admitted to selling cocaine since 2000 and to participating in over 10 shootings as a “leading member” of the Latin Saints street gang. Contreras currently is facing state charges of attempted first-degree murder and aggravated battery arising from one of these shootings. His criminal history includes two convictions for unlawful use of a weapon, a kidnapping conviction, and over 20 other arrests.
Contreras pleaded guilty to one count each of dealing and conspiring to deal in firearms without a license, 18 U.S.C. §§ 922(a)(1)(A), 871, and to three counts of possession of a firearm by a felon, id. § 922(g)(1). The district court sentenced him to a total of 100 months’ imprisonment. Contreras appeals, but his appointed counsel have moved to withdraw because they cannot identify any nonfrivolous argument to pursue. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Contreras has not accepted our invitation to respond to counsel’s motion. See CiR. R. 51(b). We confine our review to the potential issue outlined in counsel’s brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002). Because Contreras does not want his guilty pleas set aside, counsel correctly bypass discussion of potential issues concerning the voluntariness of Contreras’s pleas or the adequacy of the plea colloquy. See United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002).
In the presentence investigation report, the probation officer grouped the offenses together as part of a common scheme or plan, see U.S.S.G. § 3D1.2(b), and set a base offense level of 20 because Contreras had previously been convicted of a crime of violence (kidnapping). See U.S.S.G. § 2K2.1(a)(4)(A). The probation officer then added 2 levels because there were three firearms, see id. § 2K2.1(b)(l)(A), and subtracted 3 levels for acceptance of responsibility, see id. § 3E1.1, for a total offense level of 19. Contreras’s prior convictions resulted in a criminal history category of IV. See id. § 4Al.l(a), (b). The total offense level of 19 and criminal history category of IV yielded a guidelines imprisonment range of 46 to 57 months.
At sentencing the government argued for 120 months’ imprisonment on the ground that a sentence significantly above the guidelines range was justified by Contreras’s criminal history and his admitted gang affiliation. Contreras asked for a sentence of 40 months, however, emphasizing his acceptance of responsibility and pledging to renounce gang life. The district court sentenced Contreras to two 60-month terms for dealing and conspiring to deal in firearms and three 100-month terms for the three § 922(g)(1) counts, all running concurrently.
The only potential issue counsel consider is whether Contreras’s overall prison sentence, which is 43 months above his guidelines range, is unreasonably high. We would uphold as reasonable an above-guidelines sentence as long as the district court applied the factors set forth in 18 U.S.C. § 3553(a) and adequately explained its reasons for imposing the sentence. See United States v. Hurt, 574 F.3d 439, 442 (7th Cir.2009), cert denied, — U.S.-, 130 S.Ct. 1923, 176 L.Ed.2d 393 (2010); United States v. Wise, 556 F.3d 629, 632-33 (7th Cir.2009); United States v. Tockes, 530 F.3d 628, 632 (7th Cir.2008). Counsel correctly conclude that this argument would be frivolous because the district court thoroughly analyzed the § 3553(a) factors and amply justified Contreras’s sentence. The court recounted Contreras’s extensive criminal history, the danger that weapons dealing poses to society, and *554Contreras’s previous failures to renounce his gang affiliation after serving time in prison. The court also considered Contreras’s difficult childhood and the fact that he accepted responsibility in this case but concluded that a sentence within the guidelines range of 46 to 57 months would not deter Contreras from future criminal behavior. Counsel are unable to point to any other factor that would have compelled a lower sentence, and neither can we.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479643/ | ORDER
Abdallahi Hamoudi petitions for review of an order of the Board of Immigration Appeals upholding an Immigration Judge’s denial of his applications for asylum, withholding of removal and relief under the Convention Against Torture. Hamoudi claims that he was persecuted for his political beliefs in his native Mauritania and that he will face further persecution if forced to return. We lack jurisdiction to review the Board’s denial of asylum, and we agree with the Board that Hamoudi is not eligible for withholding or -relief under the CAT. Accordingly, we dismiss in part and deny in part the petition for review.
Hamoudi was admitted into the United States in 2000 as a nonimmigrant student for the limited purpose of attending college. He never did go to college, and nearly two years later he filed an application for asylum, which was denied as untimely. Hamoudi was charged with re-movability, see 8 U.S.C. § 1227(a)(1)(C)(i), a status he conceded when he appeared with counsel at his hearing before an immigration judge.
At his hearing, Hamoudi testified about persecution he faced as a political opponent of the government of President Maaouya Ould Sid’Ahmed Taya, who sei'ved as head of state from 1984 until his ouster in a military coup in 2005. Hamou-di and his father were active opponents of the Taya regime. Both belonged to the same opposition party and both were detained by police following anti-government protests, his father for less than a week in 1991, Hamoudi for some two weeks in 1994. In Hamoudi’s case, the police blindfolded him, locked him in the back of a truck, and drove him to an' undisclosed location where he was kept in poor conditions, beaten, and generally humiliated. He suffered a back injury from the truck ride and a toe injury as a result of a kick he received from a police officer during his detention. Hamoudi claims he was told by his captors that the police had acted on “orders from above or a personal vendetta.”
Hamoudi fears that his post-detention activities further raised his profile as a political opponent, making future persecution more likely. Shortly after the deten*558tion Hamoudi accepted a scholarship from the Mauritanian government to study in Algeria, where he remained politically active and helped organize at least two demonstrations against the Taya regime, including one that culminated in a two-day protest inside the Mauritanian embassy. Hamoudi insists the Mauritanian authorities knew of his involvement in both demonstrations. Hamoudi fears that he raised further suspicion upon returning home in 1999 to work for an Internet company, where he regularly voiced antigovernment opinions. The company, he claims, had been hired to do work for the Taya administration.
The IJ denied relief. The asylum application, he determined, was untimely because Hamoudi did not file it within one year of his arrival in the United States. See 8 U.S.C. § 1158(a)(2)(B). As for Ham-oudi’s requests for relief from removal, the IJ concluded that the mistreatment he sustained as a political opponent did not amount to persecution. The IJ also concluded that Hamoudi’s reasons for fearing a return to Mauritania were unpersuasive in light of Taya’s ouster.
The Board dismissed the appeal, though for different reasons. The Board disagreed with the IJ that Hamoudi had not presented enough evidence to demonstrate past persecution. But even if past persecution created a presumption that Hamou-di likely would face future persecution based on his political activities, see 8 C.F.R. § 208.16(b)(l)(i), the government’s evidence of current country conditions, concluded the Board, rebutted the presumption of future persecution. Id. at § 208.16(b)(1)(i)(A).
In his petition for review, Hamoudi first challenges the denial of his asylum claim. Both the IJ and the Board concluded that Hamoudi was ineligible for asylum because he had applied more than a year after entering the country and lacked a plausible argument that changed country conditions excused the delay. These determinations, the first factual and the second discretionary, fall beyond our jurisdiction on review. See 8 U.S.C. § 1158(a)(3); Vasile v. Gonzales, 417 F.3d 766, 768 (7th Cir.2005); Khan v. Filip, 554 F.3d 681, 687 (7th Cir.2009).
Hamoudi next argues that the Board’s decision to deny withholding of removal was not based on substantial evidence. He contends that elements of the Taya regime that persecuted him remain intact, and that the record does not support the government’s position that conditions have improved for political opponents of the former regime.
As the government argues, however, the regime change in Mauritania directly negated Hamoudi’s basis for fearing future persecution. See Milanouic, 591 F.3d at 570; Ogayonne v. Mukasey, 530 F.3d 514, 521 (7th Cir.2008). Some of the former regime’s officers stayed on in ministerial posts, but control of the national police rests with new leadership, and there is no evidence that opponents of former President Taya have been targeted. The record actually suggests the opposite. According to Freedom House, the transitional government issued a broad amnesty for political prisoners; some 100 were pardoned, the leader of Hamoudi’s opposition party among them, and a number of activists returned from exile. Nongovernmental organizations have operated with fewer restrictions since President Taya’s ouster, and the State Department reported no incidents of politically related imprisonments or disappearances under the transitional government. Furthermore, as the IJ noted, Hamoudi’s personal circumstances belied his fear of being singled out and persecuted upon return: although he was sponsored by the Maurita*559nian government to study in Algeria and there vocally opposed the Taya regime for five years, he encountered no difficulties upon returning to Mauritania. See Loho v. Mukasey, 531 F.3d 1016, 1017-18 (9th Cir.2008) (holding that an alien’s voluntary return to native country weighs against finding of likelihood of future persecution); Belayneh v. INS, 213 F.3d 488, 491 (9th Cir.2000).
Hamoudi asserts that his fear of future persecution is based on both his political opinions and his affiliation with the Zena-ga tribe, and that the Board overlooked the latter in denying relief. But Hamoudi in his appeal to the Board argued only that he feared persecution on account of his political opinions; references to his tribe were peripheral at best. His tribal affiliation claim thus was not exhausted, and we do not review it here. See 8 U.S.C. § 1252(d)(1); Capric v. Ashcroft, 355 F.3d 1075, 1087 (7th Cir.2004).
Finally, Hamoudi argues that the Board erred in denying him relief under the CAT. But having satisfied ourselves that the record supports the Board’s decision to deny withholding of removal, we have no difficulty concluding that Hamoudi was unlikely to meet the more stringent standard governing claims under the CAT. See Khan, 554 F.3d at 692; Ogayonne, 530 F.3d at 522.
For the foregoing reasons, the petition for review is DISMISSED in part for lack of jurisdiction and DENIED in part. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479585/ | *29
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 accorded 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.
Appellants Ernest K. Lehmann & Associates of Montana, Inc. and Mount Royal Joint Venture challenge the IBLA’s determination that appellants did not establish “discovery,” see 30 U.S.C. § 23, on six mining claims located in the Sweet Grass Hills of Liberty County, Montana, as well as the district court’s grant of summary judgment in favor of appellees. We hold that the district court correctly determined that appellants’ challenge to the applicable burden of proof fails under Foster v. Seaton, 271 F.2d 836, 838 (D.C.Cir.1959). We note, moreover, that the burden of proof that the IBLA applied to these claims, and that appellants challenge on appeal, was the same standard that appellants cited in their briefs before the IBLA. For the reasons stated by the district court, we also conclude that the IBLA’s decision — including its application of the prudent-man, Chrisman v. Miller, 197 U.S. 313, 322-23, 25 S.Ct. 468, 49 L.Ed. 770 (1905), and marketability tests, United States v. Coleman, 390 U.S. 599, 602, 88 S.Ct. 1327, 20 L.Ed.2d 170 (1968), to the mining claims at issue — was neither arbitrary nor capricious. We further conclude, again for the reasons stated by the district court, that substantial evidence supports the IBLA’s determination that the Bureau of Land Management established a prima facie case contesting the claims’ validity, a case that appellants failed to overcome.
The Clerk is directed to withhold the issuance of the mandate herein until seven days after the disposition of any timely petition for rehearing. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41(a)(1). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479591/ | JUDGMENT
PER CURIAM.
This appeal from a judgment of the United States District Court for the District of Columbia was considered on the record and on the briefs of counsel. See Fed. RApp. P. 34(a)(2); D.C. CiR. Rule 34(j). The court has accorded the issues full consideration and has determined that they do not warrant a published opinion. See D.C.Cir. Rule 36(d). It is
ORDERED and ADJUDGED that the judgment of the district court be affirmed.
The district court correctly held that appellant’s 42 U.S.C. § 1981 claim against the D.C. Office of the Inspector General (OIG) defendants for discriminatory or retaliatory failure to hire is time barred because it began to run in 1998. See Johnson v. Holder, 598 F.Supp.2d 50, 55-56 (D.D.C.2009). At that point, appellant knew or had reason to know facts that — if true, as he alleges — gave rise to his claim of discriminatory or retaliatory refusal to hire. See United States v. Kubrick, 444 U.S. 111, 125, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979); Commc’ns Vending Corp. of Ariz., Inc. v. F.C.C., 365 F.3d 1064, 1074 (D.C.Cir.2004) (“[A] cause of action accrues either when a readily discoverable injury occurs or, if an injury is not readily discoverable, when the plaintiff should have discovered it.”); cf. Merck & Co., Inc. v. Reynolds, — U.S. —, 130 S.Ct. 1784, 1794, 176 L.Ed.2d 582 (2010) (explaining that the general discovery rule “allow[s] a claim to accrue when the litigant first knows or with due diligence should know facts that will form the basis for an action”) (internal quotation marks omitted). Johnson likewise is not entitled to the equitable tolling of his claims because “[t]he court’s equitable power to toll the statute of limitations will be exercised only in extraordinary and carefully circumscribed instances” and Johnson has provided no reason sufficient to meet that “high” threshold. Smith-Haynie v. District of Columbia, 155 F.3d 575, 579-80 (D.C.Cir.1998) (internal quotation marks omitted); see Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990).
We also hold that Johnson’s allegations regarding the other D.C. defendants’ actions in his related retaliation case, Johnson v. Maddox, 270 F.Supp.2d 38 (D.D.C.2003), do not rise to the level of fraud upon the court. See United States v. Beggerly, 524 U.S. 38, 47, 118 S.Ct. 1862, 141 L.Ed.2d 32 (1998); Cobell v. Norton, 334 F.3d 1128, 1148 (D.C.Cir.2003). Moreover, in Maddox, in the course of dismissing Johnson’s Rule 60(b) motion, the district court considered nearly all of the same claims that Johnson raises here. See Johnson v. Maddox, 2005 WL 2318075, at *2 (D.D.C.2005).
The Clerk is directed to withhold the issuance of the mandate herein until seven days after the disposition of any timely petition for rehearing. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41(a)(1). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479597/ | SUMMARY ORDER
Plaintiff-appellant Barbara Zinnamon argues that the district court erred in dismissing her complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
We affirm for substantially the reasons stated in the district court’s opinion. See Zinnamon v. N.Y.C. Dep’t of Educ., No. 08-CV-1399 (E.D.N.Y. Oct.8, 2008).
Finding no merit in Zinnamon’s remaining arguments, we hereby AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479598/ | SUMMARY ORDER
Assuming arguendo that we can reach the appellant’s challenge to his sentence based on the government’s alleged breach notwithstanding his appellate waiver, the challenge is without merit. No plain error was committed below; it is by no means plain that the government’s recommendation of a sentencing range violated the provision of the plea agreement that arguably forbade it from requesting a specific sentence. See Puckett v. United States, - U.S. -, 129 S.Ct. 1423, 1428-33, 173 L.Ed.2d 266 (2009); United States v. MacPherson, 590 F.3d 215, 218 (2d Cir.2009). The remaining challenges to the sentence do not overcome the appellant’s valid waiver of his right to appeal a sentence within the stipulated Guidelines range; these challenges are therefore waived. See United States v. Haynes, 412 F.3d 37, 39 (2d Cir.2005).
Finding no merit in any of the appellant’s remaining arguments, we hereby AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479601/ | *90SUMMARY ORDER
Plaintiffs-appellants, over 100 U.S. Airways, Inc. (“US Airways”) pilots, over or approaching the age of sixty, appeal from a July 24, 2008 Memorandum and Order of District Court Judge Sandra Townes of the Eastern District of New York dismissing their Fourth Amended Complaint against defendant-appellees, the Air Line Pilots Association, International (“ALPA”) and Duane Woerth, in his official capacity as the former president of ALPA. Vaughn v. Air Line Pilots Ass’n, Int’l, 395 B.R. 520 (Bankr.E.D.N.Y.2008). In this summary order, we address only plaintiffs’ RICO claims, alleged in count VIII of the complaint.
We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review, which are also summarized in the opinion issued simultaneously with this order.
We review de novo a district court’s decision to grant a motion for judgment on the pleadings pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Desiano v. Warner-Lambert & Co., 467 F.3d 85, 89 (2d Cir.2006). To survive a motion to dismiss, a complaint must set out only enough facts to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). This standard “is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). ‘Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. (quotation marks omitted).
To succeed on a RICO claim under 18 U.S.C. § 1962(c), plaintiffs must allege facts that show that ALPA was engaged in the “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Sedima S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985); see also First Capital Asset Mgmt., Inc. v. Satinwood, Inc., 385 F.3d 159, 173 (2d Cir.2004). Further, under 18 U.S.C. § 1961(5), plaintiffs must show that ALPA engaged in at least two predicate acts of racketeering activity. See Sedima, 473 U.S. at 496 n. 14, 105 S.Ct. 3275; Spool v. World Child Int’l Adoption Agency, 520 F.3d 178, 183 (2d Cir.2008).
Apart from its appeal of the fair representation claims, plaintiffs appeal only the dismissal of those portions of the complaint alleging that ALPA committed racketeering acts premised on fraud — wire fraud, mail fraud and fraud in connection with a bankruptcy proceeding. For predicate acts premised on fraud, scienter is an essential element that need not be specifically alleged to satisfy Rule 9(b). See Powers v. British Vita, 57 F.3d 176, 184 (2d Cir.1995) (“Federal Rule of Civil Procedure 9(b) permits plaintiffs to allege fraudulent intent generally while the circumstances amounting to fraud must be averred ‘with particularity.’ ”). However, “the relaxation of Rule 9(b)’s specificity requirement for scienter must not be mistaken for [a] license to base claims of fraud on speculation and conclusory allegations,” Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir.1994) (quotation marks and citations omitted), and a plaintiff must still “allege facts that give rise to a strong inference of fraudulent intent.” Id. A plaintiffs allegations can give rise to a strong inference of fraudulent intent in two ways. First, the plaintiff may allege “a motive for committing fraud and a clear opportunity for doing so.” Powers, 57 F.3d at 184 (quotations marks and citation omitted). Second, where no motive is ap*91parent, the plaintiff may plead scienter by “identifying circumstances indicating conscious behavior by the defendant, though the strength of circumstantial allegations must be correspondingly greater.” Id. (quotation marks omitted).
Plaintiffs argue that the district court erred in concluding that they failed to establish a “strong inference” of fraudulent intent, because:
The [complaint] does so by alleging that ALPA stood to gain substantial fees upon termination of the DB Plan by managing the funds in the follow-on DC Plan and thus had a motive to commit fraud. The [complaint] also identified circumstances indicating Appellees’ conscious behavior, including (1) ALPA’s secret negotiations to terminate the DB Plan; (2) ALPA’s failure to timely audit the DB Plan; and (3) ALPA’s failure to permit the members to ratify termination of the DB Plan [despite promising to do so].
Pis.’ Br. at 15. We cannot conclude that plaintiffs have provided a sufficient basis upon which to infer that ALPA had a motive for committing fraud and a clear opportunity to do so. In a nutshell, plaintiffs allege, based on the above claims, that ALPA conspired with U.S. Airways to “exact hundreds of millions of dollars a year in pilot concessions — for each of several years,” thus “decimating]” pension benefits so that ALPA could receive management fees under the DC Plan and U.S. Airways could terminate the DB Plan. We cannot draw the requisite “strong inference” of fraudulent intent based on these allegations because: (1) the complaint does not allege that the fees were of such proportion to the amounts frittered away so as to make it plausible that ALPA would engage in the alleged scheme; and (2) ALPA is legally permitted to receive fees for a service. See Rombach v. Chang, 355 F.3d 164, 177 (2d Cir.2004). In addition, the alleged circumstances of conscious behavior are insufficient to raise the strong inference of fraudulent intent for the same reasons those allegations fail to support plaintiffs’ duty of fair representation claims. See Vaughn v. Air Line Pilots Association, 604 F.3d 703 (2d Cir.2010). Having determined that plaintiffs failed to establish this element of their RICO claim, we need not address their argument that they alleged a conspiracy to violate RICO under 18 U.S.C. § 1962(d).
Accordingly, the judgment of the district court dismissing plaintiffs’ RICO claims is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479602/ | SUMMARY ORDER
Appellants appeal from the March 31, 2009 judgment of the United States District Court for the Southern District of New York, dismissing their complaint. Appellants’ complaint, brought pursuant to 42 U.S.C. § 1983, alleged violations of their constitutional rights, stemming from an investigation by the New York City Administration for Children’s Services. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review. We affirm for all of the reasons stated in the thorough and well-reasoned opinion of the district court.
We have considered all of appellants’ arguments on appeal and find them to be without merit. Accordingly, the judgment of the district court is hereby AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479604/ | OPINION OF THE COURT
FISHER, Circuit Judge.
Michael Walker appeals from the District Court’s denial of his motion to reduce his sentence. We will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
Walker pled guilty in 2001 to one count of possession with intent to distribute in excess of five grams of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(Hi) and 18 U.S.C. § 2. Classifying Walker as a career offender under § 4B1.1 of the United States Sentencing Guidelines based on two prior drug offenses, the District Court sentenced him to 262 months in prison, the minimum under the Guidelines absent a downward departure. This Court later affirmed Walker’s conviction and sentence.
In 2008, after Walker sent a letter to the District Court asking whether he qualified for a sentence reduction based on amendments regarding the applicable sentencing range for crack cocaine offenses, the District Court appointed the Federal Public Defender’s Office to represent him. The Public Defender’s Office thereafter moved to withdraw as counsel, asserting that Walker was ineligible for the sentence reduction. The District Court agreed, granted the motion to withdraw, and denied what it construed as Walker’s request for a sentence reduction. Walker has timely appealed that ruling.1 Counsel has *238been appointed to represent Walker in this appeal.
II.
In November 2007, the Sentencing Commission adopted Amendment 706, which reduced the base offense levels for crack cocaine offenses under U.S.S.G. § 2Dl.l(c) by two levels. U.S.S.G. App. C, Amend. 706 (Nov. 1, 2007). Amendment 706 was declared retroactive to March 3, 2008. U.S.S.G. App. C., Amend. 713 (May 1, 2008). Title 18 U.S.C. § 3582(c)(2) authorizes a court to reduce the pre-Amendment 706 sentence of a defendant “if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” One such policy statement provides that “[a] reduction in the defendant’s term of imprisonment is ... not authorized under 18 U.S.C. § 3582(c)(2) if an amendment ... does not have the effect of lowering the defendant’s applicable guideline range.” U.S.S.G. § lB1.10(a)(2)(B). We have explained that “Amendment 706 only affects calculation under § 2Dl.l(c), and the lowering of the base offense level under § 2Dl.l(c) has no effect on the application of the career offender offense level required by § 4B1.1.” United States v. Mateo, 560 F.3d 152, 155 (3d Cir.2009) (citations omitted).
Here, because Walker was sentenced as a career offender under U.S.S.G. § 4B1.1, he may not avail himself of a sentence reduction under 18 U.S.C. § 3582(c)(2) based on Amendment 706. See Mateo, 560 F.3d at 155. Indeed, Walker concedes that the relief he seeks is foreclosed by Mateo. While Walker also contends that the District Court improperly refused to reduce his sentence based on United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), he overlooks that our precedents clearly preclude this line of attack as well. See United States v. Doe, 564 F.3d 305, 313 (3d Cir.2009); Mateo, 560 F.3d at 155 (“[T]his Court has rejected the argument that Booker provides a basis for reduction of sentence not otherwise allowable under § 3582(c).”). Accordingly, the District Court did not abuse its discretion in declining to reduce Walker’s sentence.
III.
For the foregoing reasons, we will affirm the District Court’s denial of Walker’s motion to reduce his sentence.
. The District Court had jurisdiction under 18 U.S.C. § 3231 and we have jurisdiction under 28 U.S.C. § 1291. We review the District Court's denial of Walker's motion for an abuse of discretion. United States v. Styer, 573 F.3d 151, 153 (3d Cir.2009). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479607/ | OPINION
PER CURIAM.
Felix Manuel Vasquez, a citizen of the Dominican Republic, entered the United States in March 1989, and adjusted his status to lawful permanent resident. In July 1990, Vasquez pleaded guilty to attempted criminal possession of a controlled substance in the third degree in violation of New York Penal Law 220.16(12). The Department of Homeland Security charged Vasquez as removable on several grounds, including for having been convicted of a crime relating to a controlled substance. See Immigration and Nationality Act (“INA”) § 212(a)(2)(A)(i)(II) [8 U.S.C. § 1182(a)(2)(A)(i)(II) ]. Vasquez conceded removability and applied for a waiver of removal under former INA § 212(c) [8 U.S.C. § 1182(c) ]. The Immigration Judge (“IJ”) concluded that Vasquez was statutorily eligible for § 212(c) relief, but denied his application as a matter of discretion because the adverse factors outweighed the positive ones.
The Board of Immigration Appeals (“BIA”) affirmed. The Board recognized Vasquez’s lengthy residence in the United States and his family ties. But it agreed that those factors were outweighed by the negative aspects of Vasquez’s case. In particular, the BIA noted that Vasquez’s conviction occurred a little over a year after he entered the United States, that he was reluctant to accept responsibility for the offense, and that his criminal activity had continued beyond 1990, including “an arrest and guilty plea as recent as 2004.” The Board also rejected Vasquez’s claim that the IJ had improperly considered evidence of his criminal history and had coerced him into involuntarily admitting that he had lied under oath regarding the circumstances leading to his 1990 conviction.
Vasquez filed a timely petition for review. The government has moved to dismiss, arguing that this Court lacks jurisdiction because Vasquez is a criminal alien who seeks review of an order denying § 212(c) relief in the exercise of discretion. We generally do not have jurisdiction to review final orders of removal against aliens, like Vasquez, who are deemed removable because they were convicted of a controlled substance offense. See INA § 242(a)(2)(C) [8 U.S.C. § 1252(a)(2)(C) ] (precluding jurisdiction where alien removable pursuant to INA § 212(a)(2)). In addition, the INA provides that “no court shall have jurisdiction to review ... any decision or action of the Attorney General ... the authority for which is specified under [relevant provisions of the INA] to be in the discretion of the Attorney General.” INA § 242(a)(2)(B)(ii) [8 U.S.C. § 1252(a)(2)(B)(ii) ]. The decision to grant or deny relief pursuant to § 212(c) is a discretionary one. See INS v. St. Cyr, 533 U.S. 289, 325, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001).
Despite these jurisdiction-stripping provisions, this Court may review “constitutional claims or questions of law” raised in a petition for review. See INA § 242(a)(2)(D) [8 U.S.C. § 1252(a)(2)(D) ]; Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir.2005). Thus, we may consider *247whether the Board, in exercising its discretion, employed an incorrect legal standard, misapplied a rule of law, or violated a provision of the U.S. Constitution. See Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir.2006) (noting that INA § 242(a)(2)(D) would confer jurisdiction over a question whether the Board applied the wrong legal standard in making a discretionary determination).
Vasquez argues that this Court has jurisdiction to review his claim that the IJ committed legal error by requiring him to demonstrate “unusual or outstanding equities” in order to be eligible for a § 212(c) waiver. Our jurisdiction may extend to such a claim. See Khan v. Gonzales, 495 F.3d 31, 34 (2d Cir.2007) (exercising jurisdiction over argument that the IJ “improperly imposed a heightened legal standard by requiring that [the petitioner] demonstrate ‘unusual or outstanding equities’ that would overcome the seriousness of his prior convictions.”). We do not need to decide the jurisdictional issue, however, because Vasquez’s claim lacks merit. See Sukwanputra, 434 F.3d at 634.
In considering whether to exercise her discretion to grant § 212(c) relief, an IJ must “balanc[e] ... the social and humane considerations presented in an alien’s favor against the adverse factors evidencing his undesirability as a permanent resident.” In re of Edwards, 20 I. & N. Dec. 191, 195 (BIA 1990). “[A]s the negative factors grow more serious, it becomes incumbent upon the alien to introduce additional offsetting favorable evidence, which in some cases may have to involve unusual or outstanding equities.” Id. Here, in describing the standards applicable to an exercise of discretion, IJ used language indicating that an alien who demonstrates “unusual or outstanding equities” merely satisfies a threshold test for a favorable exercise of discretion. This standard has been rejected by the Board. Id. at 196 n. 3; In re Sotelo-Sotelo, 23 I. & N. Dec. 201, 203-04 (BIA 2001). Significantly, however, neither the IJ nor the BIA applied the “unusual or outstanding equities” test to Vasquez’s ease. Instead, they properly “weigh[ed] the favorable and adverse factors to determine whether, on balance, the totality of the evidence before [them] indi-cat[ed] that the [petitioner] adequately demonstrated that he warranted] a favorable exercise of discretion.... ” Sotelo-Sotelo, 23 I. & N. Dec. at 204.
Vasquez also alleges the BIA and the IJ committed legal error by considering as an unfavorable factor a 2004 arrest, which he elaims never occurred.1 To the extent that this describes as a “flawed factual finding,” Petr.’s Br., 17, we lack jurisdiction to review it. See Sukwanputra, 434 F.3d at 634. Even if jurisdiction existed, however, we would reject this claim because Vasquez was not prejudiced by the alleged improper consideration of the 2004 arrest. That arrest, along with arrests in 1992, 1997, and 2000, simply supported the IJ’s proposition that Vasquez’s 1990 conviction “was not [his] only encounter with law enforcement.” Importantly, those encounters were not necessary to the IJ’s conclusion that Vasquez did not warrant a favorable exercise of discretion. Rather, the “overriding and decisive adverse factor [was Vasquez’s] refusal to truthfully testify about his 1990 drug conviction....” According to the IJ, Vasquez’s “false testimony and affidavit [concerning the 1990 conviction] ... weigh against any favorable equities in [his] case.” Therefore, any error caused by consideration of the alleged 2004 arrest *248was harmless. See Akrap v. INS, 966 F.2d 267, 272 n. 9 (7th Cir.1992) (holding that BIA’s mistaken belief that petitioner had been convicted on six counts of cocaine delivery, when he in fact had been convicted of only five, did not warrant overturning the discretionary denial of § 212(c) relief).
With respect to the IJ’s false testimony finding, Vasquez alleges that the “appropriate procedure for sustaining a charge of misrepresentation is through Section 212(a)(6)(C)(i) [8 U.S.C. § 1182(a)(6)(C)(i) ] of the Act.” Petr.’s Br., 21. That provision renders inadmissible a class of aliens “who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act....” Contrary to Vasquez’s suggestion, though, a determination of inadmissibility under § 212(c)(6)(C)(i) is not a prerequisite to finding that an alien gave false testimony for the purpose of obtaining § 212(c) relief. We also reject Vasquez’s claim that the Board engaged in improper factfinding under 8 C.F.R. § 1003.1(d)(3)(iv) by stating that the IJ “found [him] removable only on the original charge in the Notice to Appear,” ie., § 212(a)(2)(A)(i)(II). Finally, we note that the record does not support Vasquez’s contention that the IJ “failed to behave in a professional and impartial [manner].” Petr.’s Br., 24.
For the foregoing reasons, we will deny the petition for review.2
. The arrest was detailed in a “Psycho-Social evaluation," written by a social worker, that Vasquez submitted with his § 212(c) application.
. The Government’s Motion to Dismiss is denied. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479608/ | OPINION
PER CURIAM.
Maxie Sepang petitions for review of an order of the Board of Immigration Appeals (“BIA”) from an Immigration Judge’s (“IJ”) decision denying his motion to reopen his immigration proceedings. For the reasons that follow, we will deny the petition for review.
I.
Sepang, a citizen of Indonesia, entered the United States on a non-immigrant visa in 1994, and stayed longer than permitted. In April 2003, the government instituted removal proceedings against Sepang. Sepang conceded removability and applied for withholding of removal and relief under the Convention Against Torture.1 At a merits hearing, Sepang testified that he could not return to Indonesia because the Indonesian government fails to protect Christians who are attacked by Muslims. In a decision issued in March 2004, the IJ concluded that Sepang failed to establish that it was more likely than not that he would either be tortured or have his life or freedom threatened; the IJ denied Sep-ang’s applications for relief and ordered him excluded. In an order dated August 22, 2005, the BIA affirmed, noting that violence against Christians in Indonesia takes place in specific regions, and that Sepang could avoid the violence by moving to parts of Indonesia where Christians are not in danger. Sepang did not file a petition for review in this Court.
In October 2005, Sepang, through counsel, filed a motion to reopen on the grounds that the conditions in Indonesia had changed and alleging legal error in the IJ and BIA decisions. The BIA construed the motion as a motion to reconsider and rejected it as time barred. In December 2005, Sepang filed a second motion to reconsider the BIA’s denial of his earlier motion to reopen. Because Sepang submitted additional evidence regarding changed country conditions in Indonesia with his motion, the BIA construed the motion as a motion to reopen. The BIA concluded that the changed circumstances did not warrant reopening. In August 2006, Sepang, acting pro se, filed a third motion to reopen. Sepang argued that he was a member of an organization that had submitted special legislation to Congress that, if passed, would grant Sepang permanent residency. The BIA again denied the motion, rejecting it as time and number barred.
Sepang returned to the BIA in January 2009 with a fourth motion to reopen, this time seeking equitable tolling of the filing restrictions because of ineffective assistance of counsel. Sepang asserted that the attorney who had represented him during his initial appearance before the IJ and the BIA, and during his first two motions to reopen, had not diligently pursued an asylum claim and failed to present evidence about country conditions. Additionally, he claimed that his attorney had improperly filed motions to reopen and reconsider. Given these circumstances, Sepang requested that the BIA reopen his proceedings. The BIA again denied the motion as time and number barred, noting *273that equitable tolling was not available as Sepang did not comply with the procedural requirements for filing an ineffective assistance of counsel claim, as set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). The BIA further found that, since the IJ’s 2003 decision, conditions in Indonesia had not changed to the extent that would warrant reopening Sepang’s case. Sepang filed a timely petition for review.
II.
We have jurisdiction over the petition for review pursuant to 8 U.S.C. § 1252. We review the BIA’s findings of fact for substantial evidence and the denial of the motion to reopen for abuse of discretion. See Sevoian v. Ashcroft, 290 F.3d 166, 170 (3d Cir.2002). The BIA’s decision is entitled to “broad deference.” Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.2003). Thus, in order to succeed on the petition for review, Sepang must show that the BIA’s discretionary decision was arbitrary, irrational, or contrary to law. See Tipu v. INS, 20 F.3d 580, 582 (3d Cir.1994) (quotation omitted). Sepang has failed to make such a showing.
III.
In the interest of finality, a motion to reopen generally “shall be filed within 90 days of the date of entry of a final administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(C)(i); see also 8 U.S.C. § 1229a(c)(7)(A) (an alien may file one motion to reopen). In this case, Sepang filed his fourth motion to reopen over three years after the BIA’s decision. Under some circumstances, equitable tolling is available for a motion to reopen. See Borges v. Gonzales, 402 F.3d 398, 406 (3d Cir.2005). Sepang alleged ineffective assistance of counsel, which can serve as a basis for equitable tolling, if substantiated, and if accompanied by a showing of due diligence. See Mahmood v. Gonzales, 427 F.3d 248, 252 (3d Cir.2005). However, to rely on an ineffective assistance of counsel claim to toll a time limit, the BIA requires an alien to comply with the procedural requirements of Lozada, a requirement that we have held to be reasonable. Lu v. Ashcroft, 259 F.3d 127, 129 (3d Cir.2001). Sepang did not include a detailed statement setting forth what his attorney agreed to do, nor did he indicate that he had given his attorney an opportunity to respond to these charges. Furthermore, he did not show that he had reported his attorney for disciplinary action. In short, Sepang did not comply with any of the Lozada requirements. See Lozada, 19 I. & N. Dec. at 639.
Because Sepang’s motion was untimely, his motion had to be based on changed country conditions in Indonesia. See 8 C.F.R. § 1003.2(c)(3)(ii) (90 day time limitation does not apply if the alien seeks reopening “based on changed circumstances arising in the country of nationality ... if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.”) We conclude, however, that the BIA did not abuse its discretion in denying his untimely motion to reopen because Sepang did not make the required showing. Sepang based his allegation of changed circumstances arising in Indonesia, and his assertion that his evidence was material to his claim of persecution, on the State Department International Freedom Reports for 2004 and 2007. Neither of the Reports show that conditions of widespread persecution against Christians in Indonesia have changed since Sepang’s immigration hearing in 2004 such to warrant reopening. See Sioe Tjen Wong v. Att’y Gen., 539 F.3d 225, 233-34 (3d Cir.2008). Thus, Sepang has not shown the BIA’s *274decision to deny his motion to reopen was arbitrary, irrational, or contrary to law.
For the above reasons, we will deny the petition for review.
. Sepang originally filed for asylum as well; however, his attorney conceded at the merits hearing that Sepang was ineligible for asylum because it was well over one year since he had entered the United States. See 8 U.S.C. § 1158(a)(2)(B). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479586/ | JUDGMENT
PER CURIAM.
This appeal from a judgment of the United States District Court for the Dis*30trict of Columbia was presented to the court and briefed and argued by counsel. The court has accorded the issues full consideration and has determined that they do not warrant a published opinion. See D.C.CiR. Rule 36(d). It is
ORDERED and ADJUDGED that the judgment of the district court be affirmed.
Title VII prohibits the federal government from retaliating against one of its employees for engaging in action protected by Title VII. 42 U.S.C. § 2000e-3(a); Steele v. Schafer, 535 F.3d 689, 695 (D.C.Cir.2008). In order to make out a retaliation claim, a “plaintiff must show that a reasonable employee would have found the challenged action materially adverse, ‘which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’ ” Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C.Cir.2006)). Cochise points to four events as instances of actionable retaliation. Viewing the evidence in the light most favorable to Cochise, Malik v. District of Columbia, 574 F.3d 781, 783 n. 1 (D.C.Cir.2009), we agree with the district court that none of these incidents— which plaintiff herself characterized as “slights” at oral argument — constitutes a materially adverse employment action.
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/8479588/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs and arguments of the parties. The court has accorded 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.
David Melson appeals the district court’s dismissal of his Title VII claim against the Department of Interior as time barred. *31See 42 U.S.C. § 2000e-16(c). The Equal Employment Opportunity Commission’s Administrative Law Judge (ALJ) granted the appellant’s request to withdraw his administrative complaint and dismissed the complaint “with prejudice” on November 29, 2006. Because the agency did “not issue a final order within 40 days of receipt of the administrative judge’s decision,” that decision became the Department’s “final action” on January 8, 2007. 29 C.F.R. § 1614.109(i). Thereafter, the appellant, who did not file an administrative appeal of that final action, had 90 days to file a complaint in federal court. See 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.407. Because he did not file such a complaint until over a year later, on February 20, 2008, the complaint was untimely.
The appellant claims that his civil complaint was timely because the ALJ lacked authority to dismiss his administrative complaint with prejudice. The district court’s rationale for rejecting this argument is correct: “Even assuming that the ALJ should not have dismissed Plaintiffs complaint with prejudice, the undisputed fact is that the ALJ did, in fact, dismiss Plaintiffs complaint with prejudice.” Melson v. Salazar, 598 F.Supp.2d 71, 74 (D.D.C.2009). Once that dismissal became the Department’s final action, the regulations “provided Plaintiff with two choices. He could have sought reconsideration of the decision by appealing it to the agency within 30 days, ... [or he] could have also filed a complaint in this Court within 90 days.... Plaintiff did not choose either of these courses of action....” Id. at 74-75.
The appellant’s other contention is that he had only intended to withdraw his EEOC complaint from the ALJ, and that he believed it would then return “ ‘for completion of the administration consideration [i.e., investigation] [by] the agency.’ PL’s Opp’n at 2.” Id. at 75 (alterations in original). As the district court noted, the “problems with this argument are numerous.” Id. The first two problems cited by the court are more than sufficient to dispose of the case:
First, Plaintiff should have been on notice that an investigation of his claims would not continue where the ALJ interpreted his request as “withdraw[ing] his complaint from the administrative EEO process,” and not simply withdrawing his complaint before the ALJ.... 11/29/06 Dismissal Order[ ]. Second, the ALJ’s use of the phrase “dismiss[ed] with prejudice” should have also provided Plaintiff with notice that an investigation into his dismissed claims would not continue. Id.
Id. (first alteration in original).
The Clerk is directed to withhold the issuance of the mandate herein until seven days after the disposition of any timely petition for rehearing. See Fed. R.App. P. 41(b); D.C.Cir. R. 41(a)(1). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479590/ | JUDGMENT
PER CURIAM.
This appeal from a judgment of the United States District Court for the District of Columbia was considered on the record and on the briefs of counsel. See Fed. RApp. P. 34(a)(2); D.C. CiR. Rule 34(j). The court has accorded the issues full consideration and has determined that they do not warrant a published opinion. See D.C.Cir. Rule 36(d). It is
ORDERED and ADJUDGED that the judgment of the district court be affirmed.
The district court correctly held that appellant’s 42 U.S.C. § 1981 claim against the D.C. Office of the Inspector General (OIG) defendants for discriminatory or retaliatory failure to hire is time barred because it began to run in 1998. See Johnson v. Holder, 598 F.Supp.2d 50, 55-56 (D.D.C.2009). At that point, appellant knew or had reason to know facts that — if true, as he alleges — gave rise to his claim of discriminatory or retaliatory refusal to hire. See United States v. Kubrick, 444 U.S. 111, 125, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979); Commc’ns Vending Corp. of Ariz., Inc. v. F.C.C., 365 F.3d 1064, 1074 (D.C.Cir.2004) (“[A] cause of action accrues either when a readily discoverable injury occurs or, if an injury is not readily discoverable, when the plaintiff should have discovered it.”); cf. Merck & Co., Inc. v. Reynolds, — U.S. —, 130 S.Ct. 1784, 1794, 176 L.Ed.2d 582 (2010) (explaining that the general discovery rule “allow[s] a claim to accrue when the litigant first knows or with due diligence should know facts that will form the basis for an action”) (internal quotation marks omitted). Johnson likewise is not entitled to the equitable tolling of his claims because “[t]he court’s equitable power to toll the statute of limitations will be exercised only in extraordinary and carefully circumscribed instances” and Johnson has provided no reason sufficient to meet that “high” threshold. Smith-Haynie v. District of Columbia, 155 F.3d 575, 579-80 (D.C.Cir.1998) (internal quotation marks omitted); see Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990).
We also hold that Johnson’s allegations regarding the other D.C. defendants’ actions in his related retaliation case, Johnson v. Maddox, 270 F.Supp.2d 38 (D.D.C.2003), do not rise to the level of fraud upon the court. See United States v. Beggerly, 524 U.S. 38, 47, 118 S.Ct. 1862, 141 L.Ed.2d 32 (1998); Cobell v. Norton, 334 F.3d 1128, 1148 (D.C.Cir.2003). Moreover, in Maddox, in the course of dismissing Johnson’s Rule 60(b) motion, the district court considered nearly all of the same claims that Johnson raises here. See Johnson v. Maddox, 2005 WL 2318075, at *2 (D.D.C.2005).
The Clerk is directed to withhold the issuance of the mandate herein until seven days after the disposition of any timely petition for rehearing. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41(a)(1). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479592/ | JUDGMENT
PER CURIAM.
This appeal from a judgment of the United States District Court for the District of Columbia was considered on the record and on the briefs of counsel. See Fed. R.App. P. 34(a)(2); D.C.Cra. Rule 34(j). The court has accorded the issues full consideration and has determined that they do not warrant a published opinion. See D.C.Cir. Rule 36(d). It is
ORDERED and ADJUDGED that the judgment of the district court be affirmed.
Kevin Miller appeals his conviction for possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Miller contends that the district court erred in admitting evidence that he had possessed a gun on two prior occasions. But any error was harmless in light of the overwhelming evidence that he possessed the gun that is currently at issue. See United States v. Linares, 367 F.3d 941, 952-53 (D.C.Cir.2004); United States v. Johnson, 519 F.3d 478, 484 (D.C.Cir.2008); Fed.R.CrimP. 52(a). Three police officers testified that they saw Miller drop or toss the gun behind a utility box, and Miller was arrested almost immediately thereafter, a few feet away from the box. The arrest followed Miller’s flight from the scene of an undercover drug buy, and two additional officers who did not see him toss the gun saw him clutching the right side of his waistband as he ran.
Miller also challenges the district court’s imposition of a sentencing enhancement for possession of the firearm “in connection with another felony offense,” namely attempted distribution of heroin or aiding and abetting possession with the intent to distribute heroin. U.S.S.G. § 2K2.1(b)(5) (2005). While Miller was not the original target of the undercover drug buy and no heroin was found on him, before he fled he approached the undercover officer and said, “raw, raw.” The officer testified that the phrase is a street term for raw heroin and that Miller used it in a way that suggested he was offering heroin for sale. Finally, Miller had a prior conviction for attempted distribution of heroin, which the district court found probative of Miller’s intent under Federal Rule of Evidence 404(b). We review the district court’s factual finding for clear error, see United States v. Blalock, 571 F.3d 1282, 1285-87 (D.C.Cir.2009), and it was not clear error to conclude, by a preponderance of the evidence, that Miller had attempted to distribute heroin or aided and abetted possession with the intent to distribute. Miller’s alternative explanations for the “raw, raw” *34statement are less plausible than the district court’s, and he does not challenge the “in connection” aspect of the enhancement.
The Clerk is directed to withhold the issuance of the mandate herein until seven days after the disposition of any timely petition for rehearing. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41(a)(1). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479594/ | JUDGMENT
PER CURIAM.
This appeal was considered upon the briefs and the appendices filed by the parties. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the order of the district court be affirmed.
The district court correctly concluded Pearson’s testimony before the D.C. Council and private communication with the Council’s staff were not protected by the First Amendment to the Constitution of the United States. See Pearson v. District of Columbia, 644 F.Supp.2d 23, 38 (2009). A “public employee speaks without First Amendment protection when he reports conduct that interferes with his job responsibilities.” Winder v. Erste, 566 F.3d 209, 215 (D.C.Cir.2009). Pearson did just that. As an Administrative Law Judge, he had a responsibility to “[djecide all cases in an impartial manner,” D.C.Code § 2-1831.09(a)(8), and he reported to the Council that the peer review system was interfering with that responsibility, see, e.g., Compl. ¶ 222 (alleging Pearson told Council his “[d]ecisional independence” was “chilled and frustrated by a secret ... ‘peer review system”).
Nor was Pearson’s lawsuit against his dry cleaner protected speech. That suit did not involve a matter of public concern; as the district court stated, it is more properly “characterized as a personal vendetta against a dry cleaners over a pair of pants.” Pearson, 644 F.Supp.2d. at 45.
Pearson’s procedural due process claim fails because he was “afforded adequate process.” Id. at 47. His substantive due process claim fails because the “threshold for [establishing] a substantive due process violation has not been met.” Id. at 49.
Having dismissed Pearson’s federal claims, the district court did not abuse its *35discretion in declining to exercise supplemental jurisdiction over his claims arising under D.C. law. See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Finally, with regard to Pearson’s argument that on remand the district court judge should re-cuse herself or we should reassign the case, it is clear that “one fully apprised of the surrounding circumstances,” Cobell v. Norton, 334 F.3d 1128, 1143 (D.C.Cir.2003), could not reasonably question that judge’s impartiality. See 28 U.S.C. § 455(a).
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/8479596/ | SUMMARY ORDER
Plaintiff-appellant Barbara Zinnamon argues that the district court erred in dismissing her complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
We affirm for substantially the reasons stated in the district court’s opinion. See Zinnamon v. N.Y.C. Dep’t of Educ., No. 08-CV-1399 (E.D.N.Y. Oct.8, 2008).
Finding no merit in Zinnamon’s remaining arguments, we hereby AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479599/ | SUMMARY ORDER
Assuming arguendo that we can reach the appellant’s challenge to his sentence based on the government’s alleged breach notwithstanding his appellate waiver, the challenge is without merit. No plain error was committed below; it is by no means plain that the government’s recommendation of a sentencing range violated the provision of the plea agreement that arguably forbade it from requesting a specific sentence. See Puckett v. United States, - U.S. -, 129 S.Ct. 1423, 1428-33, 173 L.Ed.2d 266 (2009); United States v. MacPherson, 590 F.3d 215, 218 (2d Cir.2009). The remaining challenges to the sentence do not overcome the appellant’s valid waiver of his right to appeal a sentence within the stipulated Guidelines range; these challenges are therefore waived. See United States v. Haynes, 412 F.3d 37, 39 (2d Cir.2005).
Finding no merit in any of the appellant’s remaining arguments, we hereby AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479600/ | *90SUMMARY ORDER
Plaintiffs-appellants, over 100 U.S. Airways, Inc. (“US Airways”) pilots, over or approaching the age of sixty, appeal from a July 24, 2008 Memorandum and Order of District Court Judge Sandra Townes of the Eastern District of New York dismissing their Fourth Amended Complaint against defendant-appellees, the Air Line Pilots Association, International (“ALPA”) and Duane Woerth, in his official capacity as the former president of ALPA. Vaughn v. Air Line Pilots Ass’n, Int’l, 395 B.R. 520 (Bankr.E.D.N.Y.2008). In this summary order, we address only plaintiffs’ RICO claims, alleged in count VIII of the complaint.
We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review, which are also summarized in the opinion issued simultaneously with this order.
We review de novo a district court’s decision to grant a motion for judgment on the pleadings pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Desiano v. Warner-Lambert & Co., 467 F.3d 85, 89 (2d Cir.2006). To survive a motion to dismiss, a complaint must set out only enough facts to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). This standard “is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). ‘Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. (quotation marks omitted).
To succeed on a RICO claim under 18 U.S.C. § 1962(c), plaintiffs must allege facts that show that ALPA was engaged in the “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Sedima S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985); see also First Capital Asset Mgmt., Inc. v. Satinwood, Inc., 385 F.3d 159, 173 (2d Cir.2004). Further, under 18 U.S.C. § 1961(5), plaintiffs must show that ALPA engaged in at least two predicate acts of racketeering activity. See Sedima, 473 U.S. at 496 n. 14, 105 S.Ct. 3275; Spool v. World Child Int’l Adoption Agency, 520 F.3d 178, 183 (2d Cir.2008).
Apart from its appeal of the fair representation claims, plaintiffs appeal only the dismissal of those portions of the complaint alleging that ALPA committed racketeering acts premised on fraud — wire fraud, mail fraud and fraud in connection with a bankruptcy proceeding. For predicate acts premised on fraud, scienter is an essential element that need not be specifically alleged to satisfy Rule 9(b). See Powers v. British Vita, 57 F.3d 176, 184 (2d Cir.1995) (“Federal Rule of Civil Procedure 9(b) permits plaintiffs to allege fraudulent intent generally while the circumstances amounting to fraud must be averred ‘with particularity.’ ”). However, “the relaxation of Rule 9(b)’s specificity requirement for scienter must not be mistaken for [a] license to base claims of fraud on speculation and conclusory allegations,” Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir.1994) (quotation marks and citations omitted), and a plaintiff must still “allege facts that give rise to a strong inference of fraudulent intent.” Id. A plaintiffs allegations can give rise to a strong inference of fraudulent intent in two ways. First, the plaintiff may allege “a motive for committing fraud and a clear opportunity for doing so.” Powers, 57 F.3d at 184 (quotations marks and citation omitted). Second, where no motive is ap*91parent, the plaintiff may plead scienter by “identifying circumstances indicating conscious behavior by the defendant, though the strength of circumstantial allegations must be correspondingly greater.” Id. (quotation marks omitted).
Plaintiffs argue that the district court erred in concluding that they failed to establish a “strong inference” of fraudulent intent, because:
The [complaint] does so by alleging that ALPA stood to gain substantial fees upon termination of the DB Plan by managing the funds in the follow-on DC Plan and thus had a motive to commit fraud. The [complaint] also identified circumstances indicating Appellees’ conscious behavior, including (1) ALPA’s secret negotiations to terminate the DB Plan; (2) ALPA’s failure to timely audit the DB Plan; and (3) ALPA’s failure to permit the members to ratify termination of the DB Plan [despite promising to do so].
Pis.’ Br. at 15. We cannot conclude that plaintiffs have provided a sufficient basis upon which to infer that ALPA had a motive for committing fraud and a clear opportunity to do so. In a nutshell, plaintiffs allege, based on the above claims, that ALPA conspired with U.S. Airways to “exact hundreds of millions of dollars a year in pilot concessions — for each of several years,” thus “decimating]” pension benefits so that ALPA could receive management fees under the DC Plan and U.S. Airways could terminate the DB Plan. We cannot draw the requisite “strong inference” of fraudulent intent based on these allegations because: (1) the complaint does not allege that the fees were of such proportion to the amounts frittered away so as to make it plausible that ALPA would engage in the alleged scheme; and (2) ALPA is legally permitted to receive fees for a service. See Rombach v. Chang, 355 F.3d 164, 177 (2d Cir.2004). In addition, the alleged circumstances of conscious behavior are insufficient to raise the strong inference of fraudulent intent for the same reasons those allegations fail to support plaintiffs’ duty of fair representation claims. See Vaughn v. Air Line Pilots Association, 604 F.3d 703 (2d Cir.2010). Having determined that plaintiffs failed to establish this element of their RICO claim, we need not address their argument that they alleged a conspiracy to violate RICO under 18 U.S.C. § 1962(d).
Accordingly, the judgment of the district court dismissing plaintiffs’ RICO claims is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479605/ | OPINION OF THE COURT
FISHER, Circuit Judge.
Michael Walker appeals from the District Court’s denial of his motion to reduce his sentence. We will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
Walker pled guilty in 2001 to one count of possession with intent to distribute in excess of five grams of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(Hi) and 18 U.S.C. § 2. Classifying Walker as a career offender under § 4B1.1 of the United States Sentencing Guidelines based on two prior drug offenses, the District Court sentenced him to 262 months in prison, the minimum under the Guidelines absent a downward departure. This Court later affirmed Walker’s conviction and sentence.
In 2008, after Walker sent a letter to the District Court asking whether he qualified for a sentence reduction based on amendments regarding the applicable sentencing range for crack cocaine offenses, the District Court appointed the Federal Public Defender’s Office to represent him. The Public Defender’s Office thereafter moved to withdraw as counsel, asserting that Walker was ineligible for the sentence reduction. The District Court agreed, granted the motion to withdraw, and denied what it construed as Walker’s request for a sentence reduction. Walker has timely appealed that ruling.1 Counsel has *238been appointed to represent Walker in this appeal.
II.
In November 2007, the Sentencing Commission adopted Amendment 706, which reduced the base offense levels for crack cocaine offenses under U.S.S.G. § 2Dl.l(c) by two levels. U.S.S.G. App. C, Amend. 706 (Nov. 1, 2007). Amendment 706 was declared retroactive to March 3, 2008. U.S.S.G. App. C., Amend. 713 (May 1, 2008). Title 18 U.S.C. § 3582(c)(2) authorizes a court to reduce the pre-Amendment 706 sentence of a defendant “if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” One such policy statement provides that “[a] reduction in the defendant’s term of imprisonment is ... not authorized under 18 U.S.C. § 3582(c)(2) if an amendment ... does not have the effect of lowering the defendant’s applicable guideline range.” U.S.S.G. § lB1.10(a)(2)(B). We have explained that “Amendment 706 only affects calculation under § 2Dl.l(c), and the lowering of the base offense level under § 2Dl.l(c) has no effect on the application of the career offender offense level required by § 4B1.1.” United States v. Mateo, 560 F.3d 152, 155 (3d Cir.2009) (citations omitted).
Here, because Walker was sentenced as a career offender under U.S.S.G. § 4B1.1, he may not avail himself of a sentence reduction under 18 U.S.C. § 3582(c)(2) based on Amendment 706. See Mateo, 560 F.3d at 155. Indeed, Walker concedes that the relief he seeks is foreclosed by Mateo. While Walker also contends that the District Court improperly refused to reduce his sentence based on United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), he overlooks that our precedents clearly preclude this line of attack as well. See United States v. Doe, 564 F.3d 305, 313 (3d Cir.2009); Mateo, 560 F.3d at 155 (“[T]his Court has rejected the argument that Booker provides a basis for reduction of sentence not otherwise allowable under § 3582(c).”). Accordingly, the District Court did not abuse its discretion in declining to reduce Walker’s sentence.
III.
For the foregoing reasons, we will affirm the District Court’s denial of Walker’s motion to reduce his sentence.
. The District Court had jurisdiction under 18 U.S.C. § 3231 and we have jurisdiction under 28 U.S.C. § 1291. We review the District Court's denial of Walker's motion for an abuse of discretion. United States v. Styer, 573 F.3d 151, 153 (3d Cir.2009). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479606/ | OPINION
PER CURIAM.
Felix Manuel Vasquez, a citizen of the Dominican Republic, entered the United States in March 1989, and adjusted his status to lawful permanent resident. In July 1990, Vasquez pleaded guilty to attempted criminal possession of a controlled substance in the third degree in violation of New York Penal Law 220.16(12). The Department of Homeland Security charged Vasquez as removable on several grounds, including for having been convicted of a crime relating to a controlled substance. See Immigration and Nationality Act (“INA”) § 212(a)(2)(A)(i)(II) [8 U.S.C. § 1182(a)(2)(A)(i)(II) ]. Vasquez conceded removability and applied for a waiver of removal under former INA § 212(c) [8 U.S.C. § 1182(c) ]. The Immigration Judge (“IJ”) concluded that Vasquez was statutorily eligible for § 212(c) relief, but denied his application as a matter of discretion because the adverse factors outweighed the positive ones.
The Board of Immigration Appeals (“BIA”) affirmed. The Board recognized Vasquez’s lengthy residence in the United States and his family ties. But it agreed that those factors were outweighed by the negative aspects of Vasquez’s case. In particular, the BIA noted that Vasquez’s conviction occurred a little over a year after he entered the United States, that he was reluctant to accept responsibility for the offense, and that his criminal activity had continued beyond 1990, including “an arrest and guilty plea as recent as 2004.” The Board also rejected Vasquez’s claim that the IJ had improperly considered evidence of his criminal history and had coerced him into involuntarily admitting that he had lied under oath regarding the circumstances leading to his 1990 conviction.
Vasquez filed a timely petition for review. The government has moved to dismiss, arguing that this Court lacks jurisdiction because Vasquez is a criminal alien who seeks review of an order denying § 212(c) relief in the exercise of discretion. We generally do not have jurisdiction to review final orders of removal against aliens, like Vasquez, who are deemed removable because they were convicted of a controlled substance offense. See INA § 242(a)(2)(C) [8 U.S.C. § 1252(a)(2)(C) ] (precluding jurisdiction where alien removable pursuant to INA § 212(a)(2)). In addition, the INA provides that “no court shall have jurisdiction to review ... any decision or action of the Attorney General ... the authority for which is specified under [relevant provisions of the INA] to be in the discretion of the Attorney General.” INA § 242(a)(2)(B)(ii) [8 U.S.C. § 1252(a)(2)(B)(ii) ]. The decision to grant or deny relief pursuant to § 212(c) is a discretionary one. See INS v. St. Cyr, 533 U.S. 289, 325, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001).
Despite these jurisdiction-stripping provisions, this Court may review “constitutional claims or questions of law” raised in a petition for review. See INA § 242(a)(2)(D) [8 U.S.C. § 1252(a)(2)(D) ]; Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir.2005). Thus, we may consider *247whether the Board, in exercising its discretion, employed an incorrect legal standard, misapplied a rule of law, or violated a provision of the U.S. Constitution. See Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir.2006) (noting that INA § 242(a)(2)(D) would confer jurisdiction over a question whether the Board applied the wrong legal standard in making a discretionary determination).
Vasquez argues that this Court has jurisdiction to review his claim that the IJ committed legal error by requiring him to demonstrate “unusual or outstanding equities” in order to be eligible for a § 212(c) waiver. Our jurisdiction may extend to such a claim. See Khan v. Gonzales, 495 F.3d 31, 34 (2d Cir.2007) (exercising jurisdiction over argument that the IJ “improperly imposed a heightened legal standard by requiring that [the petitioner] demonstrate ‘unusual or outstanding equities’ that would overcome the seriousness of his prior convictions.”). We do not need to decide the jurisdictional issue, however, because Vasquez’s claim lacks merit. See Sukwanputra, 434 F.3d at 634.
In considering whether to exercise her discretion to grant § 212(c) relief, an IJ must “balanc[e] ... the social and humane considerations presented in an alien’s favor against the adverse factors evidencing his undesirability as a permanent resident.” In re of Edwards, 20 I. & N. Dec. 191, 195 (BIA 1990). “[A]s the negative factors grow more serious, it becomes incumbent upon the alien to introduce additional offsetting favorable evidence, which in some cases may have to involve unusual or outstanding equities.” Id. Here, in describing the standards applicable to an exercise of discretion, IJ used language indicating that an alien who demonstrates “unusual or outstanding equities” merely satisfies a threshold test for a favorable exercise of discretion. This standard has been rejected by the Board. Id. at 196 n. 3; In re Sotelo-Sotelo, 23 I. & N. Dec. 201, 203-04 (BIA 2001). Significantly, however, neither the IJ nor the BIA applied the “unusual or outstanding equities” test to Vasquez’s ease. Instead, they properly “weigh[ed] the favorable and adverse factors to determine whether, on balance, the totality of the evidence before [them] indi-cat[ed] that the [petitioner] adequately demonstrated that he warranted] a favorable exercise of discretion.... ” Sotelo-Sotelo, 23 I. & N. Dec. at 204.
Vasquez also alleges the BIA and the IJ committed legal error by considering as an unfavorable factor a 2004 arrest, which he elaims never occurred.1 To the extent that this describes as a “flawed factual finding,” Petr.’s Br., 17, we lack jurisdiction to review it. See Sukwanputra, 434 F.3d at 634. Even if jurisdiction existed, however, we would reject this claim because Vasquez was not prejudiced by the alleged improper consideration of the 2004 arrest. That arrest, along with arrests in 1992, 1997, and 2000, simply supported the IJ’s proposition that Vasquez’s 1990 conviction “was not [his] only encounter with law enforcement.” Importantly, those encounters were not necessary to the IJ’s conclusion that Vasquez did not warrant a favorable exercise of discretion. Rather, the “overriding and decisive adverse factor [was Vasquez’s] refusal to truthfully testify about his 1990 drug conviction....” According to the IJ, Vasquez’s “false testimony and affidavit [concerning the 1990 conviction] ... weigh against any favorable equities in [his] case.” Therefore, any error caused by consideration of the alleged 2004 arrest *248was harmless. See Akrap v. INS, 966 F.2d 267, 272 n. 9 (7th Cir.1992) (holding that BIA’s mistaken belief that petitioner had been convicted on six counts of cocaine delivery, when he in fact had been convicted of only five, did not warrant overturning the discretionary denial of § 212(c) relief).
With respect to the IJ’s false testimony finding, Vasquez alleges that the “appropriate procedure for sustaining a charge of misrepresentation is through Section 212(a)(6)(C)(i) [8 U.S.C. § 1182(a)(6)(C)(i) ] of the Act.” Petr.’s Br., 21. That provision renders inadmissible a class of aliens “who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act....” Contrary to Vasquez’s suggestion, though, a determination of inadmissibility under § 212(c)(6)(C)(i) is not a prerequisite to finding that an alien gave false testimony for the purpose of obtaining § 212(c) relief. We also reject Vasquez’s claim that the Board engaged in improper factfinding under 8 C.F.R. § 1003.1(d)(3)(iv) by stating that the IJ “found [him] removable only on the original charge in the Notice to Appear,” ie., § 212(a)(2)(A)(i)(II). Finally, we note that the record does not support Vasquez’s contention that the IJ “failed to behave in a professional and impartial [manner].” Petr.’s Br., 24.
For the foregoing reasons, we will deny the petition for review.2
. The arrest was detailed in a “Psycho-Social evaluation," written by a social worker, that Vasquez submitted with his § 212(c) application.
. The Government’s Motion to Dismiss is denied. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479609/ | OPINION
PER CURIAM.
Maxie Sepang petitions for review of an order of the Board of Immigration Appeals (“BIA”) from an Immigration Judge’s (“IJ”) decision denying his motion to reopen his immigration proceedings. For the reasons that follow, we will deny the petition for review.
I.
Sepang, a citizen of Indonesia, entered the United States on a non-immigrant visa in 1994, and stayed longer than permitted. In April 2003, the government instituted removal proceedings against Sepang. Sepang conceded removability and applied for withholding of removal and relief under the Convention Against Torture.1 At a merits hearing, Sepang testified that he could not return to Indonesia because the Indonesian government fails to protect Christians who are attacked by Muslims. In a decision issued in March 2004, the IJ concluded that Sepang failed to establish that it was more likely than not that he would either be tortured or have his life or freedom threatened; the IJ denied Sep-ang’s applications for relief and ordered him excluded. In an order dated August 22, 2005, the BIA affirmed, noting that violence against Christians in Indonesia takes place in specific regions, and that Sepang could avoid the violence by moving to parts of Indonesia where Christians are not in danger. Sepang did not file a petition for review in this Court.
In October 2005, Sepang, through counsel, filed a motion to reopen on the grounds that the conditions in Indonesia had changed and alleging legal error in the IJ and BIA decisions. The BIA construed the motion as a motion to reconsider and rejected it as time barred. In December 2005, Sepang filed a second motion to reconsider the BIA’s denial of his earlier motion to reopen. Because Sepang submitted additional evidence regarding changed country conditions in Indonesia with his motion, the BIA construed the motion as a motion to reopen. The BIA concluded that the changed circumstances did not warrant reopening. In August 2006, Sepang, acting pro se, filed a third motion to reopen. Sepang argued that he was a member of an organization that had submitted special legislation to Congress that, if passed, would grant Sepang permanent residency. The BIA again denied the motion, rejecting it as time and number barred.
Sepang returned to the BIA in January 2009 with a fourth motion to reopen, this time seeking equitable tolling of the filing restrictions because of ineffective assistance of counsel. Sepang asserted that the attorney who had represented him during his initial appearance before the IJ and the BIA, and during his first two motions to reopen, had not diligently pursued an asylum claim and failed to present evidence about country conditions. Additionally, he claimed that his attorney had improperly filed motions to reopen and reconsider. Given these circumstances, Sepang requested that the BIA reopen his proceedings. The BIA again denied the motion as time and number barred, noting *273that equitable tolling was not available as Sepang did not comply with the procedural requirements for filing an ineffective assistance of counsel claim, as set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). The BIA further found that, since the IJ’s 2003 decision, conditions in Indonesia had not changed to the extent that would warrant reopening Sepang’s case. Sepang filed a timely petition for review.
II.
We have jurisdiction over the petition for review pursuant to 8 U.S.C. § 1252. We review the BIA’s findings of fact for substantial evidence and the denial of the motion to reopen for abuse of discretion. See Sevoian v. Ashcroft, 290 F.3d 166, 170 (3d Cir.2002). The BIA’s decision is entitled to “broad deference.” Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.2003). Thus, in order to succeed on the petition for review, Sepang must show that the BIA’s discretionary decision was arbitrary, irrational, or contrary to law. See Tipu v. INS, 20 F.3d 580, 582 (3d Cir.1994) (quotation omitted). Sepang has failed to make such a showing.
III.
In the interest of finality, a motion to reopen generally “shall be filed within 90 days of the date of entry of a final administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(C)(i); see also 8 U.S.C. § 1229a(c)(7)(A) (an alien may file one motion to reopen). In this case, Sepang filed his fourth motion to reopen over three years after the BIA’s decision. Under some circumstances, equitable tolling is available for a motion to reopen. See Borges v. Gonzales, 402 F.3d 398, 406 (3d Cir.2005). Sepang alleged ineffective assistance of counsel, which can serve as a basis for equitable tolling, if substantiated, and if accompanied by a showing of due diligence. See Mahmood v. Gonzales, 427 F.3d 248, 252 (3d Cir.2005). However, to rely on an ineffective assistance of counsel claim to toll a time limit, the BIA requires an alien to comply with the procedural requirements of Lozada, a requirement that we have held to be reasonable. Lu v. Ashcroft, 259 F.3d 127, 129 (3d Cir.2001). Sepang did not include a detailed statement setting forth what his attorney agreed to do, nor did he indicate that he had given his attorney an opportunity to respond to these charges. Furthermore, he did not show that he had reported his attorney for disciplinary action. In short, Sepang did not comply with any of the Lozada requirements. See Lozada, 19 I. & N. Dec. at 639.
Because Sepang’s motion was untimely, his motion had to be based on changed country conditions in Indonesia. See 8 C.F.R. § 1003.2(c)(3)(ii) (90 day time limitation does not apply if the alien seeks reopening “based on changed circumstances arising in the country of nationality ... if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.”) We conclude, however, that the BIA did not abuse its discretion in denying his untimely motion to reopen because Sepang did not make the required showing. Sepang based his allegation of changed circumstances arising in Indonesia, and his assertion that his evidence was material to his claim of persecution, on the State Department International Freedom Reports for 2004 and 2007. Neither of the Reports show that conditions of widespread persecution against Christians in Indonesia have changed since Sepang’s immigration hearing in 2004 such to warrant reopening. See Sioe Tjen Wong v. Att’y Gen., 539 F.3d 225, 233-34 (3d Cir.2008). Thus, Sepang has not shown the BIA’s *274decision to deny his motion to reopen was arbitrary, irrational, or contrary to law.
For the above reasons, we will deny the petition for review.
. Sepang originally filed for asylum as well; however, his attorney conceded at the merits hearing that Sepang was ineligible for asylum because it was well over one year since he had entered the United States. See 8 U.S.C. § 1158(a)(2)(B). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479613/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eddie Sutherland appeals the district court’s order granting summary judgment to the Commissioner and upholding the *288denial of disability insurance benefits and supplemental security income. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Sutherland v. Commissioner, No. 4:08-cv00006-jlk-bwc, 2009 WL 331263 (W.D.Va. Feb. 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/8479612/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eddie Sutherland appeals the district court’s order granting summary judgment to the Commissioner and upholding the *288denial of disability insurance benefits and supplemental security income. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Sutherland v. Commissioner, No. 4:08-cv00006-jlk-bwc, 2009 WL 331263 (W.D.Va. Feb. 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/8479614/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Etty Tham, a native and citizen of Indonesia, petitions for review of an order of the Board of Immigration Appeals (Board) denying her motion to reopen. We have reviewed the administrative record and find no abuse of discretion in the denial of relief on Tham’s motion. See 8 C.F.R. § 1003.2(a) (2009). We accordingly deny the petition for review for the reasons stated by the Board. See In re: Tham (B.I.A. Nov. 20, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479623/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Arlo Whiteoak Romano appeals the district court’s decision to assess a two-level sentencing enhancement pursuant to U.S. Sentencing Gtddelines Manual § 3Bl.l(c) (2009), based on Romano’s status as an organizer, leader, manager, or supervisor of a drug conspiracy. We have reviewed the record and conclude that the evidence of Romano’s role in the conspiracy, including supplying drugs to street level dealers, recruiting at least one person into the conspiracy, and managing a substantial amount of drags and money, supported application of the enhancement. USSG § 3Bl.l(c) & comment, (nn.2, 4). Accordingly, we affirm the district court’s judgment. 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/8479617/ | *292Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wei You Wu, a native and citizen of China, petitions for review of an order of the Board of Immigration Appeals (Board) dismissing his appeal of the Immigration Judge’s decision denying his motion to reopen. We have reviewed the administrative record and find no abuse of discretion in the denial of relief on Wu’s motion. See 8 C.F.R. §§ 1003.2(a), 1003.23(b)(1) (2009). We accordingly deny the petition for review for the reasons stated by the Board. See In re: Wu (B.I.A. June 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.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479619/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Phillip Mace petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his 28 U.S.C. § 2255 (West Supp.2009) motion. He seeks an order from this court directing the district court to act. Our review of the district court’s docket reveals that the district court granted Mace’s motion on April 12, 2010. Accordingly, because the district court has recently decided Mace’s case, we deny the mandamus petition as moot. We grant leave to proceed in forma pauperis. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479622/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Arlo Whiteoak Romano appeals the district court’s decision to assess a two-level sentencing enhancement pursuant to U.S. Sentencing Gtddelines Manual § 3Bl.l(c) (2009), based on Romano’s status as an organizer, leader, manager, or supervisor of a drug conspiracy. We have reviewed the record and conclude that the evidence of Romano’s role in the conspiracy, including supplying drugs to street level dealers, recruiting at least one person into the conspiracy, and managing a substantial amount of drags and money, supported application of the enhancement. USSG § 3Bl.l(c) & comment, (nn.2, 4). Accordingly, we affirm the district court’s judgment. 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/8479625/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rohan Alexander Walters appeals the district court’s order denying his petition for writ of audita querela. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Walters, Nos. 2:97-cr-00157-2; 2:09-cv-00589 (S.D.W.Va. Aug. 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/8479627/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Frederick Hines appeals the district court’s orders denying relief on his complaint, which alleged violations of (1) the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 to § 12213 (2006), (2) Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (2006), (3) his Eighth Amendment right to reasonable medical care, and (4) North Carolina negligence laws, and denying his motion for appointment of counsel. We have reviewed the record and find no reversible error. Accordingly, we deny Hines’s motion for appointment of counsel and motion “to hear full and original record,” and affirm for the reasons stated by the district court. Hines v. GEO Group, Inc., No. 5:08-ct-03056-D (E.D.N.C. Dec. 23, 2008; Sept. 24, 2009; Sept. 30, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479629/ | PER CURIAM: *
Plaintiffs-appellants Mel Hibbets (“Hib-bets”) and the Break Wind Yacht Club, Inc. (the ‘Yacht Club”) appeal the dismissal of their claims against their insurer, defendant-appellee Lexington Insurance Company (“Lexington”), for violations of Louisiana’s Valued Policy Law and Louisiana’s insurance bad faith statutes. For the following reasons, we affirm.
I. BACKGROUND
Hibbets and the Yacht Club, the two named plaintiffs, filed a putative class action complaint (the “Original Complaint”) on behalf of themselves and all other similarly situated Lexington insureds whose properties were rendered a total loss from damage resulting from Hurricane Katrina. They alleged violations of Louisiana’s Valued Policy Law (“VPL”), La.Rev.Stat. Ann. § 22:695 (now La.Rev.Stat. Ann. § 22:1318). Additionally, they alleged that Lexington violated Louisiana’s insurance bad faith statutes, formerly La.Rev.Stat. Ann. §§ 22:658 and 22:1220 (now §§ 22:1892 and 22:1973).
Lexington moved to dismiss the Original Complaint for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In response to Lexington’s motion to dismiss, Appellants moved to file an amended class action complaint (the “First Amended Complaint”). The district court granted leave to amend. Thereafter, Lexington filed a motion to dismiss the First Amended Complaint for failure to state a claim. Given the significance of the VPL claims to the Appellants’ claims and the fact that the Louisiana Supreme Court was set to hear argument in a case involving the VPL the parties filed a joint motion to administratively close the case approximately one week before the hearing date on Lexington’s second motion to dismiss. The district court granted the parties’ motion and administratively closed the case on February 11, 2008.
On March 17, 2009, Appellants moved to restore the case to active status on the district court’s trial docket, and the court restored the case to active status by order dated March 25, 2009. Lexington filed a memorandum supplementing the grounds for dismissal of the First Amended Complaint. Appellants filed an opposition to that memorandum, and they sought leave to file a Second Supplemental and Amending Class Action Complaint (the “Proposed Second Amended Complaint”). Lexington filed a brief in reply supporting its motion to dismiss the First Amended Complaint, and a brief in opposition to Appellants’ *354motion for leave to file another amended complaint.
The district court granted Lexington’s motion to dismiss the Appellants’ First Amended Complaint and denied the Appellants’ motion for leave to file the Proposed Second Amended Complaint. Although the district court denied Appellants’ motion for leave to amend, it nonetheless examined their Proposed Second Amended Complaint and determined that it also did not assert any viable claims against Lexington. Undeterred, the Appellants then made another attempt to revive their claims by filing a motion for a new trial, which the district court denied because it presented neither new legal arguments nor new evidence. Appellants appeal only the district court’s dismissal of their First Amended Complaint for failure to state a claim.
II. DISCUSSION
We review de novo the grant of a 12(b)(6) motion to dismiss. Ballard v. Wall, 413 F.3d 510, 514 (5th Cir.2005). To survive a motion to dismiss, a plaintiff is required to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). “Conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.” Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir.2002).
Appellants argue that the district court erred in concluding that their First Amended Complaint failed to state a claim under Louisiana’s VPL and bad faith statutes. The First Amended Complaint asserts claims against Lexington under Louisiana’s VPL statute and alleges that the Appellants’ properties were rendered a total loss by a peril covered under their Lexington homeowners insurance policies. Louisiana’s VPL statute requires an insurer to pay the agreed face value of the insured property if the property is rendered a total loss from a covered peril. La.Rev.Stat. Ann. § 22:695. While there is some question regarding whether Louisiana’s VPL statute applies to homeowners insurance policies, this is a question that we need not address today. See, e.g., Landry v. La. Citizens Prop. Ins. Co., 983 So.2d 66, 74-76 n. 10 (La.2008); In re Katrina Canal Breaches Consol. Litig., 601 F.Supp.2d 809, 825-26 (E.D.La.2009); Chauvin v. State Farm Fire & Cas. Co., 495 F.3d 232, 237-38 (5th Cir.2007).
We have expressly held that the VPL does not apply to any loss partially caused by a non-covered peril. Chauvin, 495 F.3d at 241. In their First Amended Complaint, the named Plaintiffs, Hibbets and the Yacht Club, assert that their properties were rendered total losses “by hurricane force winds [a covered peril] and subsequent flooding [an excluded peril].” Thus, their allegations that their properties incurred wind and flood damage are insufficient to state a claim against Lexington. See Chauvin, 495 F.3d at 238-41. In the First Amended Complaint, Appellants defined the putative class as persons “who sustained damage to their property in connection with Hurricane Katrina” from a “covered peril” but allege no facts in support of their claims that their properties were rendered a total loss by a covered peril. A mere legal label such as “covered peril” does not raise the right to relief under the VPL above the speculative level and as a result the putative class members’ *355VPL claims were properly dismissed by the district court as well.
The Appellants also contend that the district court erred by dismissing their Section 22:658 and 22:1220 claims. Section 22:658 requires insurers to pay in full the claim due to the insured within thirty days of receiving satisfactory proof of loss, and allows for recovery of certain penalties if the insurer’s failure to pay is arbitrary, capricious, or without probable cause. La. Rev.Stat. Ann. § 22:658. Section 22:1220 imposes on insurers a duty of good faith and fair dealing and allows for recovery of damages and penalties for any claim not paid within sixty days of receipt of satisfactory proof of loss if the failure to pay is also arbitrary, capricious, or without probable cause. La.Rev.Stat. Ann. § 22:1220. The conduct prohibited by the two sections is “virtually identical”: “[T]he failure to timely pay a claim after receiving satisfactory proof of loss when that failure to pay is arbitrary, capricious, or without probable cause. The primary difference is the time periods allowed for payment.” Reed v. State Farm Mut. Auto. Ins. Co., 857 So.2d 1012, 1020 (La.2003); (footnote and citations omitted).
Because their VPL claims fail, in order to state a claim under Sections 22:658 and 22:1220, Appellants had to allege a viable claim against Lexington for the breach of their homeowners insurance contracts. Edwards v. Allstate Prop. & Cas. Co., No. 04-2434, 2005 WL 221558, at *2 (E.D.La. Jan.27, 2005) (holding that claims for penalties under sections 22:658 and 22:1220 cannot stand alone and require that there be a viable underlying claim, such as a breach of contract); see also Clausen v. Fid. & Deposit Co. of Md., 660 So.2d 83, 85 (La.App. 1 Cir. 8/4/95); (noting that “a plaintiff attempting to base her theory of recovery against an insurer on these statutes [§§ 22:658 and 22:1220] must first have a valid, underlying, substantive claim upon which insurance coverage is based”).
We have recognized that in order to allege a valid “claim for breach of an insurance contract under Louisiana law, a plaintiff must allege a breach of a specific policy provision.” Louque v. Allstate Ins. Co., 314 F.3d 776, 782 (5th Cir.2002). The Appellants’ First Amended Complaint reveals that they made no reference to any specific policy provision of their homeowners insurance contract that Lexington allegedly breached. Instead, the Appellants set forth general allegations that Lexington failed “to tender an appropriate amount” and that Lexington “misrepresented pertinent policy provisions.” The First Amended Complaint is devoid of facts concerning when the Appellants submitted their claims to Lexington, when they were contacted by a claims adjuster, the nature of the damage to their properties, what amounts they contend that Lexington should have paid, and on what basis, other than the VPL claim, Lexington breached its contracts with them. Nevertheless, Appellants contend the First Amended Complaint contains a valid claim for breach of contract because it contained their names, insurance policy numbers, addresses for the insured properties, and a conclusory statement that they were underpaid by Lexington. These facts alone are insufficient to state a plausible breach of contract claim. See, e.g., Landavazo v. Toro Co., 301 Fed.Appx. 333, 336-37 (5th Cir.2008) (unpublished).
In addition to failing to establish the predicate breach of contract claim, the First Amended Complaint is devoid of any factual allegations which would lead us to plausibly conclude that Lexington violated Section 22:658 and 22:1220. The First Amended Complaint alleges “that Lexington has breached and continued to breach its duties of good faith and fair dealing, as *356well as its duty to fairly adjust claims;” that “Lexington has breached and continues to breach its duty to timely adjust claims upon satisfactory proof of loss from individual Plaintiff Class members, evidencing losses from covered perils” and “misrepresented pertinent policy provisions;” and that these actions “are arbitrary, capricious, and unsupported by any evidence” and “constitute bad faith.”
These allegations are nothing more than labels and conclusions and a recitation of the language of the statutes. Simply stating a conclusory allegation that Lexington’s actions were arbitrary, or that Lexington breached a duty, without providing factual allegations in support is insufficient to state a claim. Twombly, 550 U.S. at 555, 127 S.Ct. 1955; Iqbal, 129 S.Ct. at 1949 (“Threadbare recitals of the elements of cause of action, supported by mere con-clusory statements, do not suffice.”); Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 165 (5th Cir.1999) (rejecting concluso-ry allegations). In other words, the absence of any factual allegations dooms any claim that Lexington’s actions could be construed as “arbitrary, capricious or without probable cause.” La.Rev.Stat. Ann. §§ 22:658(B)(1); 22:1220(B)(5).
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s judgment.
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/8479633/ | PER CURIAM: *
Edward Coleman, federal prisoner # 28581-034, pleaded guilty, pursuant to a witten plea agreement, to conspiracy to distribute and possess with intent to distribute five grams or more of cocaine base, a quantity of cocaine hydrochloride, 100 grams or more of heroin, and quantities of marijuana (count one). He also pleaded guilty to commission of violent crimes in aid of racketeering (count two). Coleman was sentenced to concurrent terms of 121 months in prison on each count.
*402Coleman, represented here and below by the Federal Public Defender, appeals the district court’s order denying his motion for a reduction of sentence under 18 U.S.C. § 3582(c)(2), in light of the recent amendments to the crack cocaine sentencing guidelines. In denying the motion, the district court noted that Coleman’s original sentence was within the amended guidelines range and that no further reconsideration applied.
Coleman contends that the district court arbitrarily denied his § 3582(c)(2) motion without regard to case-specific facts, such as his postconviction rehabilitative conduct, or consideration of the factors in 18 U.S.C. § 3553(a). Coleman contends a sentencing range overlap, by itself, cannot be used to justify the denial of a reduction. As an initial matter, we reject the Government’s assertion that Coleman waived the right to bring the instant appeal under the terms of his plea agreement. See United States v. Cooley, 590 F.3d 293, 297 (5th Cir.2009).
The denial of a § 3582 motion is reviewed for abuse of discretion. United States v. Evans, 587 F.3d 667 (5th Cir. 2009). Section 3582(c)(2) permits the discretionary modification of a defendant’s sentence in certain cases where the sentencing range has been subsequently lowered by the Sentencing Commission. United States v. Doublin, 572 F.3d 235, 237 (5th Cir.), cert. denied, — U.S.-, 130 S.Ct. 517, 175 L.Ed.2d 366 (2009). In such cases, the district court may reduce the sentence after considering the applicable factors under § 3553(a) and the applicable guideline policy statements. § 3582(c)(2). However, the sentencing court is not required to provide reasons for its denial of a § 3582(c)(2) motion or to expressly explain its consideration of the § 3553(a) factors. Evans, 587 F.3d at 673-74. If the record shows that the district court gave due consideration to the motion as a whole and implicitly considered the § 3553(a) factors, there is no abuse of discretion. See United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995).
Although the district court did not discuss the § 3553(a) factors expressly, the record reflects that it considered them. See Evans, 587 F.3d at 673. The district court’s decision denying the motion indicates that it understood that Coleman’s original sentence was within the amended guidelines range and shows that the district court considered the amended guidelines range but determined that no reduction in sentence was warranted. Under these circumstances, the court gave due consideration to the motion to reduce sentence and implicitly considered the § 3553(a) factors. Moreover, the record reflects that the district court was made aware of Coleman’s good conduct in prison, and there is no reason to believe that the district court believed erroneously that it could not reduce Coleman’s sentence.1 *403Accordingly, Coleman has not shown that the district court’s denial of his motion was an abuse of discretion. See Evans, 587 F.3d at 673-74; Whitebird, 55 F.3d at 1010; United States v. Harrell, 341 Fed. Appx. 965 (5th Cir.2009).
AFFIRMED.
Pursuant to 5m Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5tii Cir. R. 47.5.4.
. In the report to the court from the committee consisting of a representative of the District Attorney's Office and a representative of the Federal Public Defender's Office, the court was advised of the original guideline range (121-151 months), the amended guideline range (97-121 months), that "Defendant is eligible for [section] 3582 sentence reduction” and of the fact that Coleman had no prison disciplinary record (and Coleman's motion to reduce likewise mentioned that and his completion of a drug abuse program in prison).
We also note that at the original sentencing the district court stated that "You [Coleman] had a history here of run-ins with the law. You were lucky your criminal history was only II as opposed to III. I have some question about that. It looks like to me Probation might have given you a little bit of a break with this criminal history II rather than III.” The court also said at the original sentencing that the sentencing objectives of punishment *403and rehabilitation could be met by a 121 month sentence. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479628/ | PER CURIAM: *
Plaintiffs-appellants Mel Hibbets (“Hib-bets”) and the Break Wind Yacht Club, Inc. (the ‘Yacht Club”) appeal the dismissal of their claims against their insurer, defendant-appellee Lexington Insurance Company (“Lexington”), for violations of Louisiana’s Valued Policy Law and Louisiana’s insurance bad faith statutes. For the following reasons, we affirm.
I. BACKGROUND
Hibbets and the Yacht Club, the two named plaintiffs, filed a putative class action complaint (the “Original Complaint”) on behalf of themselves and all other similarly situated Lexington insureds whose properties were rendered a total loss from damage resulting from Hurricane Katrina. They alleged violations of Louisiana’s Valued Policy Law (“VPL”), La.Rev.Stat. Ann. § 22:695 (now La.Rev.Stat. Ann. § 22:1318). Additionally, they alleged that Lexington violated Louisiana’s insurance bad faith statutes, formerly La.Rev.Stat. Ann. §§ 22:658 and 22:1220 (now §§ 22:1892 and 22:1973).
Lexington moved to dismiss the Original Complaint for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In response to Lexington’s motion to dismiss, Appellants moved to file an amended class action complaint (the “First Amended Complaint”). The district court granted leave to amend. Thereafter, Lexington filed a motion to dismiss the First Amended Complaint for failure to state a claim. Given the significance of the VPL claims to the Appellants’ claims and the fact that the Louisiana Supreme Court was set to hear argument in a case involving the VPL the parties filed a joint motion to administratively close the case approximately one week before the hearing date on Lexington’s second motion to dismiss. The district court granted the parties’ motion and administratively closed the case on February 11, 2008.
On March 17, 2009, Appellants moved to restore the case to active status on the district court’s trial docket, and the court restored the case to active status by order dated March 25, 2009. Lexington filed a memorandum supplementing the grounds for dismissal of the First Amended Complaint. Appellants filed an opposition to that memorandum, and they sought leave to file a Second Supplemental and Amending Class Action Complaint (the “Proposed Second Amended Complaint”). Lexington filed a brief in reply supporting its motion to dismiss the First Amended Complaint, and a brief in opposition to Appellants’ *354motion for leave to file another amended complaint.
The district court granted Lexington’s motion to dismiss the Appellants’ First Amended Complaint and denied the Appellants’ motion for leave to file the Proposed Second Amended Complaint. Although the district court denied Appellants’ motion for leave to amend, it nonetheless examined their Proposed Second Amended Complaint and determined that it also did not assert any viable claims against Lexington. Undeterred, the Appellants then made another attempt to revive their claims by filing a motion for a new trial, which the district court denied because it presented neither new legal arguments nor new evidence. Appellants appeal only the district court’s dismissal of their First Amended Complaint for failure to state a claim.
II. DISCUSSION
We review de novo the grant of a 12(b)(6) motion to dismiss. Ballard v. Wall, 413 F.3d 510, 514 (5th Cir.2005). To survive a motion to dismiss, a plaintiff is required to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). “Conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.” Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir.2002).
Appellants argue that the district court erred in concluding that their First Amended Complaint failed to state a claim under Louisiana’s VPL and bad faith statutes. The First Amended Complaint asserts claims against Lexington under Louisiana’s VPL statute and alleges that the Appellants’ properties were rendered a total loss by a peril covered under their Lexington homeowners insurance policies. Louisiana’s VPL statute requires an insurer to pay the agreed face value of the insured property if the property is rendered a total loss from a covered peril. La.Rev.Stat. Ann. § 22:695. While there is some question regarding whether Louisiana’s VPL statute applies to homeowners insurance policies, this is a question that we need not address today. See, e.g., Landry v. La. Citizens Prop. Ins. Co., 983 So.2d 66, 74-76 n. 10 (La.2008); In re Katrina Canal Breaches Consol. Litig., 601 F.Supp.2d 809, 825-26 (E.D.La.2009); Chauvin v. State Farm Fire & Cas. Co., 495 F.3d 232, 237-38 (5th Cir.2007).
We have expressly held that the VPL does not apply to any loss partially caused by a non-covered peril. Chauvin, 495 F.3d at 241. In their First Amended Complaint, the named Plaintiffs, Hibbets and the Yacht Club, assert that their properties were rendered total losses “by hurricane force winds [a covered peril] and subsequent flooding [an excluded peril].” Thus, their allegations that their properties incurred wind and flood damage are insufficient to state a claim against Lexington. See Chauvin, 495 F.3d at 238-41. In the First Amended Complaint, Appellants defined the putative class as persons “who sustained damage to their property in connection with Hurricane Katrina” from a “covered peril” but allege no facts in support of their claims that their properties were rendered a total loss by a covered peril. A mere legal label such as “covered peril” does not raise the right to relief under the VPL above the speculative level and as a result the putative class members’ *355VPL claims were properly dismissed by the district court as well.
The Appellants also contend that the district court erred by dismissing their Section 22:658 and 22:1220 claims. Section 22:658 requires insurers to pay in full the claim due to the insured within thirty days of receiving satisfactory proof of loss, and allows for recovery of certain penalties if the insurer’s failure to pay is arbitrary, capricious, or without probable cause. La. Rev.Stat. Ann. § 22:658. Section 22:1220 imposes on insurers a duty of good faith and fair dealing and allows for recovery of damages and penalties for any claim not paid within sixty days of receipt of satisfactory proof of loss if the failure to pay is also arbitrary, capricious, or without probable cause. La.Rev.Stat. Ann. § 22:1220. The conduct prohibited by the two sections is “virtually identical”: “[T]he failure to timely pay a claim after receiving satisfactory proof of loss when that failure to pay is arbitrary, capricious, or without probable cause. The primary difference is the time periods allowed for payment.” Reed v. State Farm Mut. Auto. Ins. Co., 857 So.2d 1012, 1020 (La.2003); (footnote and citations omitted).
Because their VPL claims fail, in order to state a claim under Sections 22:658 and 22:1220, Appellants had to allege a viable claim against Lexington for the breach of their homeowners insurance contracts. Edwards v. Allstate Prop. & Cas. Co., No. 04-2434, 2005 WL 221558, at *2 (E.D.La. Jan.27, 2005) (holding that claims for penalties under sections 22:658 and 22:1220 cannot stand alone and require that there be a viable underlying claim, such as a breach of contract); see also Clausen v. Fid. & Deposit Co. of Md., 660 So.2d 83, 85 (La.App. 1 Cir. 8/4/95); (noting that “a plaintiff attempting to base her theory of recovery against an insurer on these statutes [§§ 22:658 and 22:1220] must first have a valid, underlying, substantive claim upon which insurance coverage is based”).
We have recognized that in order to allege a valid “claim for breach of an insurance contract under Louisiana law, a plaintiff must allege a breach of a specific policy provision.” Louque v. Allstate Ins. Co., 314 F.3d 776, 782 (5th Cir.2002). The Appellants’ First Amended Complaint reveals that they made no reference to any specific policy provision of their homeowners insurance contract that Lexington allegedly breached. Instead, the Appellants set forth general allegations that Lexington failed “to tender an appropriate amount” and that Lexington “misrepresented pertinent policy provisions.” The First Amended Complaint is devoid of facts concerning when the Appellants submitted their claims to Lexington, when they were contacted by a claims adjuster, the nature of the damage to their properties, what amounts they contend that Lexington should have paid, and on what basis, other than the VPL claim, Lexington breached its contracts with them. Nevertheless, Appellants contend the First Amended Complaint contains a valid claim for breach of contract because it contained their names, insurance policy numbers, addresses for the insured properties, and a conclusory statement that they were underpaid by Lexington. These facts alone are insufficient to state a plausible breach of contract claim. See, e.g., Landavazo v. Toro Co., 301 Fed.Appx. 333, 336-37 (5th Cir.2008) (unpublished).
In addition to failing to establish the predicate breach of contract claim, the First Amended Complaint is devoid of any factual allegations which would lead us to plausibly conclude that Lexington violated Section 22:658 and 22:1220. The First Amended Complaint alleges “that Lexington has breached and continued to breach its duties of good faith and fair dealing, as *356well as its duty to fairly adjust claims;” that “Lexington has breached and continues to breach its duty to timely adjust claims upon satisfactory proof of loss from individual Plaintiff Class members, evidencing losses from covered perils” and “misrepresented pertinent policy provisions;” and that these actions “are arbitrary, capricious, and unsupported by any evidence” and “constitute bad faith.”
These allegations are nothing more than labels and conclusions and a recitation of the language of the statutes. Simply stating a conclusory allegation that Lexington’s actions were arbitrary, or that Lexington breached a duty, without providing factual allegations in support is insufficient to state a claim. Twombly, 550 U.S. at 555, 127 S.Ct. 1955; Iqbal, 129 S.Ct. at 1949 (“Threadbare recitals of the elements of cause of action, supported by mere con-clusory statements, do not suffice.”); Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 165 (5th Cir.1999) (rejecting concluso-ry allegations). In other words, the absence of any factual allegations dooms any claim that Lexington’s actions could be construed as “arbitrary, capricious or without probable cause.” La.Rev.Stat. Ann. §§ 22:658(B)(1); 22:1220(B)(5).
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s judgment.
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/8479631/ | PER CURIAM: *
The attorney appointed to represent Simon Ricarte Balderas, Jr., 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). Balderas 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 responsi*399bilities herein, arid 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/8479632/ | PER CURIAM: *
Sterling Lewis, federal prisoner #28129-034, appeals the district court’s July 23 (and 29), 2008 denial of his 18 U.S.C. § 3582(e)(2) motion to reduce his sentence for conspiracy to possess with intent to distribute 50 grams or more of cocaine base, at least 500 grams but less than 5 kilograms of cocaine hydrochloride, and at least 50 kilograms but less than 100 kilograms of marijuana. Lewis’s § 3582(c)(2) motion was based on Amendment 706 of the Sentencing Guidelines. In denying the motion, the district court reasoned that Lewis had received two prior substantial sentence reductions, pursuant to motions under U.S.S.G. § 5K1.1 and Fed.R.Crim.P. 35; his sentence was already 57 months less than the bottom of his recalculated guidelines range; and no further reduction in his sentence was warranted. Lewis argues that the district court’s denial of his motion constituted an abuse of discretion.
Lewis’s appeal is not barred by the waiver in his plea agreement. See United States v. Cooley, 590 F.3d 293, 296-97 (5th Cir.2009) (holding that an identical waiver did not bar an appeal). A district court’s decision whether to reduce a sentence pursuant to § 3582(c)(2) is reviewed for abuse of discretion. United States v. Evans, 587 F.3d 667, 672 (5th Cir.2009), petition for cert. filed, (Jan. 28, 2010) (No. 09-8939). The district court was permitted but not required to grant a reduction in Lewis’s sentence. See § 1B1.10(b)(2)(B); Cooley, 590 F.3d at 297. The record reflects that the district court was aware of its authority to grant a reduction to Lewis’s sentence, was presented with Lewis’s arguments in favor of a reduction, and had before it documents allowing for consideration of the factors relevant to the decision whether to grant a reduction. We discern no abuse of discretion by the district court. *401See Cooley, 590 F.3d at 297-98; Evans, 587 F.3d at 672-73; United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir.1995).
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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479634/ | PER CURIAM: *
Edward Coleman, federal prisoner # 28581-034, pleaded guilty, pursuant to a witten plea agreement, to conspiracy to distribute and possess with intent to distribute five grams or more of cocaine base, a quantity of cocaine hydrochloride, 100 grams or more of heroin, and quantities of marijuana (count one). He also pleaded guilty to commission of violent crimes in aid of racketeering (count two). Coleman was sentenced to concurrent terms of 121 months in prison on each count.
*402Coleman, represented here and below by the Federal Public Defender, appeals the district court’s order denying his motion for a reduction of sentence under 18 U.S.C. § 3582(c)(2), in light of the recent amendments to the crack cocaine sentencing guidelines. In denying the motion, the district court noted that Coleman’s original sentence was within the amended guidelines range and that no further reconsideration applied.
Coleman contends that the district court arbitrarily denied his § 3582(c)(2) motion without regard to case-specific facts, such as his postconviction rehabilitative conduct, or consideration of the factors in 18 U.S.C. § 3553(a). Coleman contends a sentencing range overlap, by itself, cannot be used to justify the denial of a reduction. As an initial matter, we reject the Government’s assertion that Coleman waived the right to bring the instant appeal under the terms of his plea agreement. See United States v. Cooley, 590 F.3d 293, 297 (5th Cir.2009).
The denial of a § 3582 motion is reviewed for abuse of discretion. United States v. Evans, 587 F.3d 667 (5th Cir. 2009). Section 3582(c)(2) permits the discretionary modification of a defendant’s sentence in certain cases where the sentencing range has been subsequently lowered by the Sentencing Commission. United States v. Doublin, 572 F.3d 235, 237 (5th Cir.), cert. denied, — U.S.-, 130 S.Ct. 517, 175 L.Ed.2d 366 (2009). In such cases, the district court may reduce the sentence after considering the applicable factors under § 3553(a) and the applicable guideline policy statements. § 3582(c)(2). However, the sentencing court is not required to provide reasons for its denial of a § 3582(c)(2) motion or to expressly explain its consideration of the § 3553(a) factors. Evans, 587 F.3d at 673-74. If the record shows that the district court gave due consideration to the motion as a whole and implicitly considered the § 3553(a) factors, there is no abuse of discretion. See United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995).
Although the district court did not discuss the § 3553(a) factors expressly, the record reflects that it considered them. See Evans, 587 F.3d at 673. The district court’s decision denying the motion indicates that it understood that Coleman’s original sentence was within the amended guidelines range and shows that the district court considered the amended guidelines range but determined that no reduction in sentence was warranted. Under these circumstances, the court gave due consideration to the motion to reduce sentence and implicitly considered the § 3553(a) factors. Moreover, the record reflects that the district court was made aware of Coleman’s good conduct in prison, and there is no reason to believe that the district court believed erroneously that it could not reduce Coleman’s sentence.1 *403Accordingly, Coleman has not shown that the district court’s denial of his motion was an abuse of discretion. See Evans, 587 F.3d at 673-74; Whitebird, 55 F.3d at 1010; United States v. Harrell, 341 Fed. Appx. 965 (5th Cir.2009).
AFFIRMED.
Pursuant to 5m Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5tii Cir. R. 47.5.4.
. In the report to the court from the committee consisting of a representative of the District Attorney's Office and a representative of the Federal Public Defender's Office, the court was advised of the original guideline range (121-151 months), the amended guideline range (97-121 months), that "Defendant is eligible for [section] 3582 sentence reduction” and of the fact that Coleman had no prison disciplinary record (and Coleman's motion to reduce likewise mentioned that and his completion of a drug abuse program in prison).
We also note that at the original sentencing the district court stated that "You [Coleman] had a history here of run-ins with the law. You were lucky your criminal history was only II as opposed to III. I have some question about that. It looks like to me Probation might have given you a little bit of a break with this criminal history II rather than III.” The court also said at the original sentencing that the sentencing objectives of punishment *403and rehabilitation could be met by a 121 month sentence. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479636/ | ORDER
Hung Nam Tran was confined at the Wisconsin Resource Center (WRC), a medium-security facility that houses sexually violent persons civilly committed under Wis. Stat. Ch. 980. Asserting among other claims that his mail was being withheld in violation of the First Amendment, the appellant brought suit under 42 U.S.C. § 1983 against Kimberly Roberts, a social worker at WRC, and Robert Kriz, a supervisor of WRC’s Admissions, Treatment, and Pre-Treatment Units. The district *544court dismissed some claims and later granted the defendants summary judgment on the First Amendment claim. We affirm.
In 1991 Hung Nam Tran was convicted of sexually assaulting two children, aged 4 and 5, and sentenced to 20 years’ imprisonment. When the appellant was paroled by the Department of Corrections, he was classified as a sexually violent person and civilly committed to WRC. He was therefore subject to dual supervision: committed under Chapter 980 and subject to the Department of Corrections’ supervision until his maximum discharge date in 2011.
Between July and November 2007 several children’s clothing catalogs addressed to the appellant were delivered to the WRC. Issues of Out and Out Traveler magazines were also delivered. The defendants refused to hand over the catalogs, citing his “Rules of Community Supervision” that were revised in July 2007 to prohibit the appellant from possessing any photographs of minors, including those in magazines or catalogs. The defendants refused to deliver the Out magazines because they featured nudity, which the defendants and the appellant’s parole officer determined would be inappropriate.
In April 2008, while awaiting parole revocation proceedings, the appellant was temporarily transferred from WRC to the Sturtevant Transitional Facility, which is operated by the Department of Corrections.
The appellant’s § 1983 suit contended that the defendants violated the First Amendment by withholding the catalogs and magazines. He later amended his complaint to add a claim that the defendants improperly transferred him to Stur-tevant in retaliation for bringing this suit against them. His complaint also alleged that Roberts sexually and racially harassed him by propositioning him with photographs of female genitalia, and then directing racial epithets at him when he rejected her advances; that Rriz improperly prevented him from wearing certain T-shirts that he thought offensive and counter-therapeutic; that the defendants wrongly subjected him to two 72-hour segregation assignments; and that all of these actions generally violated the Americans with Disabilities Act and Rehabilitation Act.
The district court screened the appellant’s complaint, 28 U.S.C. § 1915, and allowed to go forward only the claims regarding the mail and retaliation. The appellant moved to compel the defendants to produce documentation relating to his treatment at WRC, but the court denied the motion because the appellant did not confer with the defendants before bringing his motion and he refused to sign a required medical release. The court then granted defendants’ motion for summary judgment, concluding that the prison’s withholding of the mail was reasonably related to legitimate penological interests, and that the appellant presented no admissible evidence to suggest that either Kriz or Roberts was involved in the decision to initiate parole revocation proceedings.
On appeal, the appellant challenges only generally the district court’s dismissal of his harassment, clothing-restriction, segregation, ADA, and Rehabilitation Act claims. But these claims were properly dismissed. As the district court noted, the harassment claim failed to state a claim because the appellant alleged only that he was subjected to derogatory language, and such language alone does not give rise to a constitutional claim. See DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir.2000). The claim that the appellant could not wear certain T-shirts was also properly dismissed because civil detainees *545are subject to the same sorts of restrictions as convicted prisoners, see Allison v. Snyder, 332 F.3d 1076, 1079 (7th Cir.2003); Thielman v. Leean, 282 F.3d 478, 484 (7th Cir.2002), and only restrictions that impose atypical and significant hardships in relation to the ordinary incidents of confinement violate the Constitution, Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); Thielman, 282 F.3d at 484 (applying Sandin to Chapter 980 detainees). The appellant’s challenge to his temporary segregation similarly failed to state a claim because not only is temporary segregation commonplace (and thus not atypical or significant), see Townsend v. Fuchs, 522 F.3d 765, 771 (7th Cir.2008), but also his complaint admitted to violating rules that warranted the segregation. Finally, the appellant’s ADA and Rehabilitation Act claims were properly dismissed because he never alleged that he suffered mistreatment because of a disability. See Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 962 (7th Cir.2010).
The appellant next contends that the district court erred during discovery by not compelling the defendants to turn over treatment records and grievances relating to his treatment at WRC, and for failing to sanction the defendants when they refused. See Fed.R.Civ.P. 37. As the district court properly noted, however, federal law requires that a patient specifically authorize the release of confidential medical information, see 42 U.S.C. § 1320d-2; 45 C.F.R. § 164.508; see Nw. Mem’l Hosp. v. Ashcroft, 362 F.3d 923, 924-25 (7th Cir.2004), and this he failed to do. To the extent that the appellant believed that he needed further discovery to withstand summary judgment, he should have filed a motion under Federal Rule of Civil Procedure 56(f). See Easley v. Kirmsee, 382 F.3d 693, 699 (7th Cir.2004);
DiCesare v. Stuart, 12 F.3d 973, 979 (10th Cir.1993) (even pro se litigants must follow Rule 56(f)).
As for the grant of summary judgment, the appellant contends that the defendants violated his First Amendment rights because their refusal to deliver the catalogs and magazines served no legitimate penological purpose. He further contends that Kriz and Roberts, who are not licensed psychotherapists, are not qualified to determine whether the magazines and catalogs were detrimental to his therapy and rehabilitation.
The district court properly granted summary judgment because the appellant presented nothing to dispute that regulating these items served a legitimate penological purpose, or that the rules of his community supervision and probation prohibited him from possessing these items. Prisons have great discretion in limiting the reading material of prisoners to promote rehabilitation and safety, see Thornburgh v. Abbott, 490 U.S. 401, 413, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989); Mays v. Springborn, 575 F.3d 643, 649 (7th Cir.2009), and the district court properly found that the restrictions placed on this detainee were reasonably related to these goals, see, e.g., Waterman v. Farmer, 183 F.3d 208, 217 (3d Cir.1999) (upholding prison’s refusal to deliver sexually explicit materials to sex offenders). The appellant presented nothing to rebut the defendants’ evidence, including an affidavit from a licensed psychotherapist, that both sexually explicit materials and photographs of children can be counter-therapeutic to pedophiles. Nor did he dispute the defendants’ evidence that the catalogs presented a security issue because they could be traded with other pedophiles within the institution.
As for the grants of summary judgment on the retaliatory transfer claim, the appellant contends that a fact issue exists *546concerning whether the suit motivated his transfer. He asserts that he — like other civil detainees who complained about the defendants — was transferred to Department of Corrections custody only after filing suit. But summary judgment was proper because the appellant offered nothing to contradict the defendants’ denials that they were involved in the decision to transfer him. Kriz asserted that he was not assigned to the same unit as the appellant at WRC, and Roberts asserted that as a social worker she had no authority to order a transfer. To withstand summary judgment, the appellant needed to present some evidence beyond suspicious timing to show that the defendants were personally involved in the purported retaliation. See Turner v. The Saloon, Ltd., 595 F.3d 679, 687 (7th Cir.2010).
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479638/ | ORDER
Fernandez White seeks appellate review of a district court order revoking his supervised release. His appointed counsel moves to withdraw, unable to find a non-frivolous issue to pursue. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel identifies three potential issues in her brief, and Mr. White’s response, see CIR. R. 51(b), identifies no others, so we address only the issues identified by counsel. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). We conclude that both are frivolous.
In March 2008 Mr. White completed a prison term for two drug-conspiracy convictions and began serving a five-year term of supervised release. Two months later Mr. White violated the terms of his supervised release, so the district court reimprisoned him for three days (time served) and imposed a new five-year term of supervision, the first six months of which were to be served in a re-entry facility. After only weeks at the facility, however, Mr. White left and did not return. When law enforcement officers caught up with him more than a year later, he gave them a false name. He was also in possession of marijuana.
The government petitioned to revoke Mr. White’s supervised release, alleging that Mr. White committed multiple violations of the terms of his release: he illegally possessed marijuana; he obstructed justice by lying to police about his name; he failed to remain in the re-entry center; he failed to notify his probation officer about a change in address; and he failed to complete a substance-abuse program. Mr. White admitted these allegations at a revocation hearing in November 2009, and the district court revoked Mr. White’s supervised release and imposed 36 months’ re-imprisonment to be followed by 12 months’ supervised release.
In her Anders submission, counsel first considers whether Mr. White could *548argue that the district court abused its discretion when it revoked his supervised release. As counsel notes, however, this argument would be frivolous, for the district court had no discretion in the matter. After Mr. White admitted to possessing marijuana, a controlled substance, the court was required to revoke his supervised release and impose a sentence that included a term of imprisonment. 18 U.S.C. § 3583(g)(1); United States v. Israel, 317 F.3d 768, 769 (7th Cir.2003).
Counsel next considers whether Mr. White could challenge his term of reimprisonment as unreasonable. But counsel correctly concludes that this argument, too, would be frivolous because the reimprisonment term was not “plainly unreasonable.” United States v. Kizeart, 505 F.3d 672, 674 (7th Cir.2007). The court correctly determined that in light of Mr. White’s prior drug convictions, his possession of marijuana was a Grade B violation. See United States v. Trotter, 270 F.3d 1150, 1151-52 (7th Cir.2001). Coupled with his criminal history category of IV, the violation yielded a guideline range of 12 to 18 months and carried a statutory maximum of four years and 362 days. See 21 U.S.C. § 841(b)(1)(A); 18 U.S.C. §§ 3559(a)(1), 3583(e)(3); U.S.S.G. § 7B1.4(a). The district court settled on 36 months, noting the severity of the offense and doubting that Mr. White, a drug addict who had once before violated his supervised release, was “supervisable.” The district court’s explanation demonstrates that it considered the applicable policy statements, see U.S.S.G. ch. 7, pt. B, and the factors set out in 18 U.S.C. § 3553(a), see United States v. Salinas, 365 F.3d 582, 588-89 (7th Cir.2004); United States v. Hale, 107 F.3d 526, 530 (7th Cir.1997).
Next, counsel considers whether Mr. White could identify any procedural errors in the revocation proceedings. But counsel correctly explains that any procedural challenge would be frivolous because the district court complied with Federal Rule of Criminal Procedure 32.1(b)(2). Mr. White received written notice of the alleged violations, was allowed to speak in mitigation of his conduct, and was at all times represented by counsel. Except for a short-lived request for new counsel, which Mr. White promptly withdrew, the proceedings carried on without any irregularities.
Finally, counsel correctly points out that Mr. White would be better off saving any claim of ineffective assistance of counsel for collateral review, where the record can be more fully developed. See Massaro v. United States, 538 U.S. 500, 504-505, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Harris, 394 F.3d 543, 557-558 (7th Cir.2005).
Accordingly, we GRANT the motion to withdraw and DISMISS the appeal. In light of the foregoing, we also deny Mr. White’s request for new counsel. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479642/ | ORDER
David Newton robbed two Chicago-area banks over the course of two weeks. Newton fired a gun during each robbery but nobody was shot. He pleaded guilty *555to two counts of bank robbery, 18 U.S.C. § 2113(a), and one count of using a firearm in furtherance of a crime of violence, 18 U.S.C. § 924(c)(l)(A)(iii). The district court sentenced him below the guidelines range to 100 months’ imprisonment for the bank robberies and a mandatory consecutive term of 120 months’ imprisonment for using the firearm. Newton appeals, but his appointed counsel has requested permission to withdraw his representation because he cannot find any nonfrivolous grounds for the appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Newton did not take advantage of an opportunity to submit a reply under Circuit Rule 51(b), so we review only the potential issues identified by counsel. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Counsel appears to have concluded from Newton’s notice of appeal that Newton wants to challenge the validity of his plea, so counsel begins by considering whether Newton could argue that his plea colloquy violated Rule 11 of the Federal Rules of Criminal Procedure. See United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002). Like counsel, we conclude that this argument would be frivolous because the district court conducted a colloquy that conformed with the requirements of Rule 11.
Counsel next considers whether Newton could challenge as impermissible doubleeounting the sentence enhancement he received for using a weapon during a robbery; Newton’s 120-month consecutive term on the § 924(c) conviction, counsel notes, is also premised on the use of a weapon during a robbery. This argument, too, would be frivolous. There is no double counting where a defendant who committed multiple armed robberies receives a § 924(c) conviction for one robbery and a weapons-related enhancement for the other. See United States v. Katalinic, 510 F.3d 744, 747 (7th Cir.2007); United States v. Mrazek, 998 F.2d 453, 455 (7th Cir. 1993).
Counsel also considers whether Newton could challenge his sentence as unreasonable. But 100 months is below the guidelines range, properly calculated by the district court, for the counts that did not carry mandatory terms, and is thus presumptively reasonable. See United States v. Liddell, 543 F.3d 877, 885 (7th Cir.2008). Moreover, counsel can identify no error in the district court’s analysis of the sentencing factors under 18 U.S.C. § 3553(a). Indeed, the sentencing transcript shows that the district court adequately considered all of the § 3553(a) factors, including the dangerousness of armed robbery, Newton’s criminal history, and his difficult upbringing.
Accordingly, we GRANT the motion to withdraw and DISMISS the appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479646/ | ORDER
In April 2009, Jose Jimenez-Betancourt was arrested in Kentucky for cashing stolen payroll checks. He pled guilty in state court to crimes of fraud and theft and was sentenced on September 15, 2009, to three years in Kentucky state prison. While awaiting his state sentence, Jimenez-Be-tancourt was also indicted in federal court in the Western District of Wisconsin for cashing stolen checks in that state. There, he pled guilty to two counts of bank fraud. Having already served nearly nine months in Kentucky, he was sentenced on January 15, 2010, to fourteen months in federal prison, to run concurrently with the remainder of his state sentence. He now appeals that federal sentence. We affirm.
The district court properly calculated Jimenez-Betancourt’s guideline sentence range. His base offense level was seven. Jimenez-Betancourt’s intended loss in Wisconsin was $43,292.63; adding the intended loss in Kentucky increased the figure to $61,070.66. Both numbers called for the district court to apply the six-level enhancement for intended losses greater than $30,000 but less than $70,000. Subtracting two levels for acceptance of responsibility, the court came to a total offense level of eleven. Jimenez-Betancourt does not dispute that this calculation was proper. He also concedes that he was ineligible for a time-served credit under U.S.S.G. § 5G1.3(b) because adding his intended loss from his Kentucky crimes to his intended loss from his Wisconsin crimes did not change his offense level.
Nevertheless, Jimenez-Betancourt argues that the district court was unreasonable in failing to exercise its discretion under 18 U.S.C. § 3553(a) to give him credit for time served anyway. He cites United States v. Cunningham, 429 F.3d 673 (7th Cir.2005), for the proposition that a district court must explain why it declined to exercise its discretion to vary from the guidelines range, and argues that the district court’s explanation here was insufficient.
We disagree. To begin with, Jimenez-Betancourt’s argument for a variance was not particularly compelling. His objections to the presentence report essentially argued that the district court should read out of the guideline the requirement that his offense level went up because of his Kentucky conduct, but offered no reason why it would be unfair in this case to follow the guideline. Nor did he argue that the guideline is facially unreasonable and would be unfair in any case.
At the sentencing hearing, Chief Judge Crabb considered and rejected Jimenez-Betancourt’s argument: “I know that you think you should be given credit for the time you have spent in state custody .... Your conviction in Kentucky accounts for *561only a portion of the scheme in which you were involved, however.” We might hope for a more thorough explanation, and the fact that the court went on to mention the guideline calculation again muddies the water a bit. Still, we are confident that the district court understood well that it had the discretion to impose a sentence outside the properly calculated guidelines range and declined to exercise that discretion. Its decision not to subtract the time served was neither an oversight nor a “rote statement,” but rather a case-specific conclusion that Jimenez-Betancourt’s Wisconsin conduct was distinct enough to justify a separate term in federal prison regardless of time served in Kentucky. That due consideration is all that we require. See Cunningham, 429 F.3d at 679.
The defendant’s sentence is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479647/ | PER CURIAM.
George Gleeson appeals the district court’s1 order dismissing his civil action. After careful de novo review, see Gopher Oil Co. v. Bunker, 84 F.3d 1047, 1050 (8th Cir.1996), we agree with the district court that it lacked subject matter jurisdiction over this matter. Accordingly, we affirm. See 8th Cir. R. 47B.
. The Honorable Ralph Erickson, Chief Judge, United States District Court for the District of North Dakota. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479691/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Forrest Ray Kyle appeals the district court’s orders accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C. § 2254 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Kyle v. McBride, No. 2:02-cv-00010-REM (N.D. W. Va. Oct. 29, 2002 Mar. 24, 2009). We deny Kyle’s motion to appoint counsel and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479650/ | MEMORANDUM **
Melvin Lewis appeals from the district court’s order granting in part and denying in part his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction. 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), Lewis’ 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 the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479652/ | MEMORANDUM **
Jimmy Lowell Roberts appeals from his guilty-plea conviction and 100-month sentence for bank robbery, in violation of 18 U.S.C. § 2113(a). Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 *601L.Ed.2d 493 (1967), Roberts’ 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 the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479654/ | MEMORANDUM **
Eduardo Cruz-Castillo appeals from his guilty-plea conviction and 24-month sentence for illegal re-entry after deportation, in violation of 8 U.S.C. § 1326. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Cruz-Castillo’s 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 the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, 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/8479658/ | *648MEMORANDUM ***
The plaintiffs appeal the district court’s dismissal of their third amended complaint with prejudice and without leave to amend. The plaintiffs also appeal the court’s order denying reconsideration of that dismissal as well as several procedural decisions. We have jurisdiction under 28 U.S.C. § 1291.
We affirm the dismissal of this action and the denial of reconsideration for the reasons stated by the district court. The plaintiffs’ contentions regarding judicial reassignment, recusal, and briefing deadlines lack merit.
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/8479653/ | MEMORANDUM **
Eduardo Cruz-Castillo appeals from his guilty-plea conviction and 24-month sentence for illegal re-entry after deportation, in violation of 8 U.S.C. § 1326. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Cruz-Castillo’s 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 the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, 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/8479656/ | MEMORANDUM **
Joey Deshaun Clark appeals from his guilty-plea conviction and 70-month sen*608tence for being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(2). Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Clark’s 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 the appellant with the opportunity to file a pro se supplemental brief. Clark’s letter, received on March 10, 2010, is deemed filed. We construe the letter as a pro se supplemental brief. No 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, 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/8479659/ | MEMORANDUM *
Petitioner Felipe de Jesus Hernandez-Padilla petitions for review of the Board of Immigration Appeals’ denial of cancellation of removal. Because Petitioner’s case is in all relevant ways identical to the petitioner’s case in Nunez-Reyes v. Holder, 602 F.3d 1102 (9th Cir.2010), and in the petitioner’s case in Rice v. Holder, 597 F.3d 952 (9th Cir.2010), we grant the petition for review and remand for further proceedings. As in Nunez-Reyes, we remand on an open record, and the government is free to raise any arguments not rejected in that opinion.
Petition GRANTED; case REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479662/ | MEMORANDUM **
John MacMullin appeals from the district court’s affirmance of the bankruptcy court’s order modifying the automatic stay to permit the probate of Sylvia Levering’s Estate to continue and referring all questions relating to the merits of attorney’s fees and costs awarded during probate proceedings to the probate court.
After reviewing the record and the briefs, we affirm for the reasons given by the district court in its decision. As explained in Marshall v. Marshall, 547 U.S. 293, 126 S.Ct. 1735, 164 L.Ed.2d 480 (2006), the probate exception to bankruptcy jurisdiction applies to claims against the res in the custody of the state court and to matters internal to the probate of the will.
We construe MacMullin’s “motion re: record” as a request for judicial notice of records that were not before the bankruptcy court and deny.
AFFIRMED; MOTION 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/8479664/ | ORDER AND JUDGMENT*
STEPHEN H. ANDERSON, Circuit Judge.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
Defendant and appellant Pablo Rene Bucio pled guilty, without a plea agreement, to five assorted drug and firearm violations, and then he pled guilty, with a plea agreement, to one count of conspiracy to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii). He was sentenced to 327 months’ imprisonment. Mr. Bucio filed a timely Notice of Appeal, and his appointed counsel, David A. Kelly, filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), moving to withdraw as counsel. For the reasons set forth below, we agree with Mr. Kelly that the record in this case provides no nonfrivolous basis for an appeal, and we therefore grant his motion to withdraw and dismiss this appeal.
BACKGROUND
On November 5, 2008, a 12-count Second Superceding Indictment was filed, charging Mr. Bucio with the following: conspiracy to distribute and to possess with intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(l)(A)(viii) and 18 U.S.C. § 2 (count 1); conspiracy to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D) and 18 U.S.C. § 2 (count 4); attempt to manufacture and distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D) and 18 U.S.C. § 2 (count 5); use of a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(l)(A)(i) and 2, and 21 U.S.C. §§ 841(a)(1) and 846 (count 6); controlled substance user in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2) (count 7); maintaining a residence for the purpose of storing, using, manufacturing and distributing marijuana, in violation of 21 U.S.C. § 856(a)(2) and 18 U.S.C. § 2 (count 8); and possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D) (count 9). He pled guilty to counts 4, 5, 7, 8 and 9 without a plea agreement; later that same day, he pled guilty pursuant to a written plea agreement to count 1. The court dismissed count 6 by the government at sentencing, as part of the plea agreement.
Following the entry of his guilty pleas, Mr. Bucio filed a series of pro se motions with the district court, including a “Motion to be Moved to the Constitutional Side of the Court & Request for Dismissal of Cer*785tain Charges,” a “Motion to Receive Transcripts,” and a “Motion to Continue Sentencing.” Mr. Bucio’s retained counsel then moved to withdraw from the case, which the district court allowed counsel to do, following a hearing. At that hearing, Mr. Bucio’s counsel indicated that Mr. Bu-cio was unhappy with his services. Mr. Bucio alleged that his counsel had performed poorly and had coerced him into pleading guilty. He then orally moved the court for an order allowing him to withdraw his guilty plea. The court did not rule on Mr. Bucio’s various pending motions, but did allow his counsel to withdraw and then set aside time for Mr. Bucio to hire new counsel.
Following that hearing, Mr. Bucio filed a pro se “Notice of Negative-Averment of Plea Agreement,” in which he argued that his plea was not knowing, voluntary or intelligent, and that he should be released from the obligations of his written plea agreement. The district court then overruled Mr. Bucio’s previously filed motion and his pro se Motion to Dismiss Count. When Mr. Bucio failed to retain new counsel, the district court appointed him an attorney pursuant to the Criminal Justice Act.
Following the appointment of new counsel, the district court denied Mr. Bucio’s pro se “Motion to Receive Transcripts.” Mr. Bucio’s counsel then filed a “Motion for Disclosure of Grand Jury Transcripts” and a “Motion for Order for Production of Hearing Transcripts.” Prior to sentencing, the district court denied those motions. Following those denials, Mr. Bucio directed his appointed counsel to endorse and file three new handwritten motions prepared by Mr. Bucio, including a “Motion for Reconsideration of Order Denying Transcripts,” a “Motion to Dismiss the Criminal Case” and a “Motion to Withdraw Guilty Plea.” The district court denied those motions at the sentencing hearing.
The sentencing hearing took place on July 28, 2009. The district court heard evidence and argument regarding Mr. Bucio’s objections to the amount of methamphetamine attributed to him and the probation department’s failure, in the pre-sentence report (“PSR”) it prepared for sentencing, to grant Mr. Bucio an additional one point reduction in his offense level for acceptance of responsibility. After hearing argument and receiving evidence, the district court overruled Mr. Bucio’s objections and determined that his final total offense level under the advisory United States Sentencing Commission, Guidelines Manual (“USSG”), was a 38 which, with a criminal history category of II, yielded an advisory sentencing range of 262 to 327 months. The court sentenced Mr. Bucio to 327 months on Count 1, 60 months on Counts 4, 5 and 9, 120 months on count 7, and 240 months on Count 8, all to run concurrently.
Mr. Bucio timely filed his notice of appeal. On the government’s motion to enforce the appeal waiver contained in the written plea agreement, our court entered an order dismissing Mr. Bucio’s appeal as to Count 1 only. Mr. Bucio persists in his efforts to appeal his conviction and sentence on the remaining Counts.
DISCUSSION
In Anders, the Supreme Court held that if a defendant’s counsel “finds [the defendant’s] case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw.” Anders, 386 U.S. at 744, 87 S.Ct. 1396. Counsel must submit to both the court and his client a “brief referring to anything in the record that might arguably support the appeal.” Id. The defen*786dant may then “raise any points that he chooses.” Id.
The reviewing court must examine all the proceedings to determine whether the appeal is frivolous. Id. “If it so finds it may grant counsel’s request to withdraw and dismiss the appeal.” Id. “On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) [the reviewing court] must, prior to decision, afford the indigent [defendant] the assistance of counsel to argue the appeal.” Id.
In this case, Mr. Rubio has submitted only a letter to the court, in response to his counsel’s Anders brief and motion to withdraw. In his letter he simply “ask[s] the Tenth Circuit to review the record and determine the correctness of counsel’s assessment that no meritorious issues exist.” Letter dated 4/15/2010. The government has declined to file a brief. Accordingly, we base our conclusions on counsel’s brief and our own careful review of the record.
Mr. Bucio urges his counsel to raise the following issues: (1) whether the district court erred in denying Mr. Bucio’s motion to withdraw his guilty plea; (2) whether his speedy trial rights were violated; (3) whether he was denied the right to counsel; (4) whether he was improperly denied the right to have access to the grand jury transcripts; and (5) whether his sentence was procedurally and substantively reasonable. We consider whether any of these issues present a nonfrivolous basis for appeal.
I. Guilty Plea
In order for a guilty plea to be valid, it must be knowing, intelligent and voluntary. See, e.g., United States v. Gigot, 147 F.3d 1193, 1197 (10th Cir.1998). Furthermore, district courts are generally required, under Fed.R.Crim.P. Rule 11, to specifically ensure that a defendant understands the nature of the charge against him/her, the maximum possible penalties, including any applicable mandatory minimum sentences, the rights involved in a jury trial, including the right to confront and cross-examine adverse witnesses, and the general means by which a sentence will be calculated under the guidelines.
Mr. Bucio claims that his then-retained counsel coerced him into pleading guilty and forced him into “an adhesion contract (plea bargain) under duress after being threatened to spend from twenty years to the rest of my life in prison by my attorney.” “Notice of Negative-Averment of Plea Agreement” at 3, R. Vol. 1 at 222. The record reveals that two separate plea hearings were held regarding Mr. Bucio’s guilty pleas; together they encompassed all the counts to which Mr. Bucio pled guilty. Mr. Bucio signed a written detailed plea petition prior to each plea, and the district court entered an order affirming the voluntariness of each plea. We agree with Mr. Bucio’s counsel, who states in his Anders brief that “[b]ased upon the record in the case and the lack of any specifics by Mr. Bucio as to how his plea-counsel was to have coerced his guilty pleas, it would be difficult to say that Mr. Bucio’s pleas were not knowing and voluntary.” Appellant’s Br. at 9.
Mr. Bucio also claims that the district court erred in failing to allow him to withdraw his guilty plea pursuant to Fed. R.Crim.P. 11(d). “We review the district court’s denial of a motion to withdraw a guilty plea for an abuse of discretion.” United States v. Yazzie, 407 F.3d 1139, 1142 (10th Cir.2005) (en banc) (quotation omitted). “[Ujnless it is shown that the trial court acted unjustly or unfairly, there is no abuse of discretion.” United States v. Siedlik, 231 F.3d 744, 748 (10th Cir.2000) (quotation omitted).
*787Rule 11(d)(2)(B) provides that a defendant may withdraw a guilty plea “after the court accepts the plea, but before it imposes sentence if: ... the defendant can show a fair and just reason for requesting the withdrawal.” We have articulated seven factors for a district court to consider when analyzing a motion to withdraw a guilty plea. Yazzie, 407 F.3d at 1142.1 Examination of these factors leads to the clear conclusion that the district court did not abuse its discretion in denying Mr. Bucio’s request to withdraw his guilty plea. While Mr. Bucio did protest his innocence in his pro se “Notice of Negative-Averment of Plea Agreement,” both the government and the court would have been inconvenienced if the court granted the motion to withdraw, inasmuch as Mr. Bu-cio pled guilty on the day the trial was supposed to begin. Furthermore, Mr. Bu-cio delayed some four months before making his oral motion to withdraw his guilty plea, and he made it only after he saw the draft PSR and realized that a stiff sentence was being contemplated. Finally, as discussed above, we have no doubt that Mr. Bucio’s guilty plea was knowing and voluntary. We therefore perceive absolutely no abuse of discretion in the district court’s denial of Mr. Bucio’s motion to withdraw his guilty plea.
II. Speedy Trial
Mr. Bucio also claims his speedy trial rights were violated by a purported delay in the proceedings against him. We agree with his counsel that this argument is frivolous. First, he failed to raise this issue before the district court until very late — after his trial date and guilty plea had been entered, and just a few days prior to his sentencing. Furthermore, it fails on its merits. “In determining whether a defendant’s Sixth Amendment right to a speedy trial has been violated, a court must balance four factors: (1) the length of delay; (2) the reason for delay; (3) the defendant’s assertion of his right; .and (4) any prejudice to the defendant.” United States v. Toombs, 574 F.3d 1262, 1274 (10th Cir.2009) (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)). No single factor is “necessary or sufficient to conclude a violation has occurred. Instead, the factors are related and must be considered together along with other relevant circumstances.” Id. Even assuming the one year and one month period of delay in Mr. Bucio’s case is presumptively prejudicial, the remaining factors demonstrate the frivolousness of this argument. As Mr. Bucio’s counsel points out, Mr. Bucio is the one who sought and obtained virtually all the continuances in this case. “Delays attributable to the defendant do not weigh in favor of a Sixth Amendment violation.” Id. Furthermore, as indicated above, Mr. Bu-cio only raised this issue, somewhat cursorily, a few days before sentencing, and after he had pled guilty. Finally, given his guilty plea and, with respect to Count 1, his explicit waiver of appellate rights, it is hard to discern what prejudice Mr. Bucio suffered because of any delay. Thus, this issue presents no nonfrivolous basis for an appeal.
III. Denial of Right to Counsel
The only conceivable claim Mr. Bucio could make as to the denial of counsel *788would be to argue that his retained counsel moved to and was permitted to withdraw as counsel following Mr. Bucio’s guilty plea. The district court instructed Mr. Bucio to obtain new counsel and when he failed to do that, the court appointed counsel. That counsel represented Mr. Bucio through his sentencing. We can perceive no prejudice to Mr. Bucio, or any consequence at all, from this series of events. We again agree with his counsel that “[i]t would be difficult to say that Mr. Bucio. was denied counsel and, if he was, that his waiver [of counsel for a brief period] was not knowing, voluntary and intelligent.” Appellant’s Br. at 15.
IV. Denial of Right to Grand Jury Transcripts
Next, Mr. Bucio would like to argue that the district court erred when it failed to grant his motion to disclose the grand jury transcripts related to his case. He made this motion some six months after his guilty plea and he claimed that the transcripts contained “Brady and/or Giglio witness material and/or statements that should have been disclosed to the defense prior to Mr. Bucio’s plea in the case.... ” Mot. at 1, R. Vol. 1 at 243. The district court denied the motion, characterizing Mr. Bucio’s request as a “fishing expedition” because he “has not made a strong showing of particularized need that outweighs the public interest in secrecy of grand jury proceedings.” Mem. & Order at 2, R. Vol. 2 at 9. Mr. Bucio provides no better explanation on appeal; it is therefore clear that the district court did not abuse its discretion in denying Mr. Bucio access to the grand jury transcripts.
V. Reasonableness of Sentence
Finally, Mr. Bucio attempts to challenge the reasonableness of his sentence on two grounds: (1) the district court erred in calculating the amount of methamphetamine attributable to him and failed to reduce his total offense level by one point for timely acceptance of responsibility; and (2) his resulting sentence is unreasonable. This argument, too, fails to clear the frivolousness hurdle.
Following United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) and the cases derived therefrom, we review all sentences for reasonableness under a deferential abuse of discretion standard. See Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); see also United States v. Smart, 518 F.3d 800, 805 (10th Cir.2008) (“[W]e now review all sentences — whether inside, just outside, or significantly outside the Guidelines range — under a deferential abuse-of-discretion standard.”). Reasonableness has two parts: procedural reasonableness and substantive reasonableness. Mr. Bucio appears to challenge both.
“Procedural review requires us to consider whether the district court committed any ‘significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing adequately to explain the chosen sentence.’ ” United States v. Bergman, 599 F.3d 1142, 1150 (10th Cir.2010) (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). We have more specifically stated, with respect to Guidelines calculations, the following:
In determining whether the district court correctly calculated the recommended Guidelines range, we review de novo the district court’s legal conclusions pertaining to the Guidelines and review its factual findings, including its *789determination of the quantity of drugs for which the defendant is held accountable under the Guidelines, for clear error. Drug quantities employed by the district court to calculate the applicable Guidelines range may be said to be clearly erroneous only “when the district court’s finding was without factual support in the record or we are left with the definite and firm conviction that a mistake has been made.”
United States v. Todd, 515 F.3d 1128, 1135 (10th Cir.2008) (quoting United States v. Dalton, 409 F.3d 1247, 1251 (10th Cir.2005)) (other citations omitted); see also United States v. Cardenas-Alatorre, 485 F.3d 1111, 1119 (10th Cir.2007) (holding that, for a finding to be clearly erroneous, the “finding must be more than possible or even probably wrong; the error must be pellucid to any objective observer”) (further quotation omitted).
The district court found that Mr. Bucio was responsible for the distribution of at least 1.5 kilograms of methamphetamine. We have carefully read all testimony relating to methamphetamine transactions involving Mr. Bucio, and there is ample evidence supporting the drug quantities calculated by the district court.
Furthermore, Mr. Bucio claims error because the district court failed to grant him a further one-point reduction for timely acceptance of responsibility under USSG § 3El.l(b). USSG § 3El.l(b) provides for the reduction upon the motion of the government when a defendant has pled guilty in a timely manner “thereby permitting the government to avoid preparing for trial.” Id. Given that Mr. Bucio did not plead guilty until the morning trial was to commence and that the government did not move for the reduction, it is pellucidly clear that Mr. Bucio is not entitled to the one-point reduction.
Finally, Mr. Bucio appears to challenge the substantive reasonableness of his sentence. “A sentence is substantively unreasonable if the length of the sentence is unreasonable given the totality of the circumstances in light of the 18 U.S.C. § 3553(a) factors.” United States v. Haley, 529 F.3d 1308, 1311 (10th Cir.), cert. denied, — U.S. -, 129 S.Ct. 428, 172 L.Ed.2d 310 (2008). “Sentences imposed within the correctly calculated Guidelines range ... may be presumed reasonable on appeal.” Id. Mr. Bucio can rebut that presumption by demonstrating that the 18 U.S.C. § 3553(a) factors justify a lower sentence. United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir.2006) (per curiam). After carefully reviewing the record, we can conceive of no basis upon which Mr. Bucio can seriously argue that he has rebutted the presumptively reasonable sentence imposed by the district court.
CONCLUSION
We agree with Mr. Bucio’s counsel that no meritorious basis exists for Mr. Bucio’s appeal of either his conviction or his sentence. We therefore GRANT his counsel’s motion to withdraw and DISMISS this appeal.
This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1.
. The seven factors are "(1) whether the defendant has asserted his innocence; (2) whether withdrawal would prejudice the government; (3) whether the defendant delayed in filing his motion, and if so, the reason for the delay; (4) whether withdrawal would substantially inconvenience the court; (5) whether close assistance of counsel was available to the defendant; (6) whether the plea was knowing and voluntary; and (7) whether the withdrawal would waste judicial resources.” Yazzie, 407 F.3d at 1142 (quotation omitted). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479665/ | SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that appellant’s motion for bail is hereby DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479668/ | SUMMARY ORDER
Defendant Rahsaan Adams appeals from a April 6, 2009 judgment of the District Court finding that defendant violated the terms of his supervised release and sentencing him principally to fifteen months’ imprisonment. For the first time, on appeal defendant argues that the District Court erred by (1) failing to consider adequately certain factors that it must consider under 18 U.S.C. § 3558(a); (2) failing to explain adequately the reasons for the District Court’s upward departure from the sentence suggested by the United States Sentencing Guidelines (“the Guidelines”); and (3) imposing a substantively unreasonable sentence on defendant. We assume the parties’ familiarity with the underlying facts and procedural history of this case. Following United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), a district court has broad latitude to “impose either a Guidelines sentence or a non-Guidelines sentence.” United States v. Sanchez, 517 F.3d 651, 660 (2d Cir.2008); see also United States v. Cavera, 550 F.3d 180, 190 (2d Cir.2008) (en banc). Accordingly, the role of the Court of Appeals is limited to examining a sentence for reasonableness, which is akin to review under an “abuse-of-discretion” standard. See Cavera, 550 F.3d at 190; see also Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) (“[C]ourts of appeals must review all sentences — whether inside, just outside, or significantly outside the Guidelines range — under a deferential abuse-of-discretion standard.”); cf. Sims v. Blot, 534 F.3d 117, 132 (2d Cir.2008) (“A district court has abused its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located within the range of permissible decisions.” (alteration, citations, and quotation marks omitted)). This standard applies “both to the [substantive reasonableness of the] sentence itself and to the procedures employed in arriving at the sentence.” United States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir.2008). Finally, because defendant failed to raise his procedural objections before the District Court, we review those claims under a “plain error” standard. See United States v. Villafuerte, 502 F.3d 204, 208 (2d Cir.2007).
First, defendant argues that his sentence was procedurally unreasonable because the District Court failed to consider adequately certain factors that it must consider under 18 U.S.C. § 3553(a). There is a “strong presumption that the District Court faithfully performed its statutory obligation to consider the § 3553(a) factors.” United States v. Fernandez, 443 F.3d 19, 33 (2d Cir.2006). Adams has presented no evidence to rebut this presumption. Moreover, upon of a review of the record, we conclude that the District Court did, in fact, consider the statutory factors. Indeed, the District Court discussed several of the factors at length at the sentencing proceeding. Accordingly, we conclude that the District Court did not err, much less commit plain error, by fail*57ing to consider the factors set forth in 18 U.S.C. § 3558(a).
Next, Adams argues that his sentence was procedurally unreasonable because the District Court failed to consider the sentencing range calculated under the Guidelines, and it failed to explain why the District Court decided to depart upward from the Guidelines sentence. Each of these arguments fails. First, the District Court did consider the sentencing range, both when it referenced the Guidelines range during sentencing proceedings and when it explicitly adopted the violation of supervised release report containing the Guidelines Range. See Verkhoglyad, 516 F.3d at 129 (“[T]he fact that [defendant’s] probation violation report specifically informed the district court of the sentencing range ... supports the presumption that the able district judge considered this range as required by § 3553(a)(4)(B).”). The District Court also explained at length why it imposed a term of incarceration above the suggested sentencing range. Because Adams has not identified any procedural eiTor below, he necessarily fails to satisfy his weighty burden under the “plain error” standard. Accordingly, we conclude that defendant’s sentence was not procedurally unreasonable.
Finally, Adams argues that the sentence imposed was substantively unreasonable. Substantive reasonableness is “a concept of flexible meaning, generally lacking precise boundaries.” Verkhoglyad, 516 F.3d at 134 (quotation marks and citations omitted). Here, the District Court explained at length its reasons for imposing the sentence, all of which are reasonable. Moreover, it was not unreasonable for the District Court to impose a sentence longer than that recommended by the probation officers or the government, because the recommendations of the probation officers or the prosecution do not bind the District Court’s discretion in sentencing defendants. See United States v. Avello-Alvarez, 430 F.3d 543, 545-46 (2d Cir.2005). We therefore conclude that the sentence imposed by the District Court was not substantively unreasonable.
CONCLUSION
We have considered all of defendant’s arguments and find them to be without merit. Accordingly, for the reasons stated above, the judgment of the District Court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479663/ | ORDER AND JUDGMENT*
STEPHEN H. ANDERSON, Circuit Judge.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
Defendant and appellant Pablo Rene Bucio pled guilty, without a plea agreement, to five assorted drug and firearm violations, and then he pled guilty, with a plea agreement, to one count of conspiracy to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii). He was sentenced to 327 months’ imprisonment. Mr. Bucio filed a timely Notice of Appeal, and his appointed counsel, David A. Kelly, filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), moving to withdraw as counsel. For the reasons set forth below, we agree with Mr. Kelly that the record in this case provides no nonfrivolous basis for an appeal, and we therefore grant his motion to withdraw and dismiss this appeal.
BACKGROUND
On November 5, 2008, a 12-count Second Superceding Indictment was filed, charging Mr. Bucio with the following: conspiracy to distribute and to possess with intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(l)(A)(viii) and 18 U.S.C. § 2 (count 1); conspiracy to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D) and 18 U.S.C. § 2 (count 4); attempt to manufacture and distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D) and 18 U.S.C. § 2 (count 5); use of a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(l)(A)(i) and 2, and 21 U.S.C. §§ 841(a)(1) and 846 (count 6); controlled substance user in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2) (count 7); maintaining a residence for the purpose of storing, using, manufacturing and distributing marijuana, in violation of 21 U.S.C. § 856(a)(2) and 18 U.S.C. § 2 (count 8); and possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D) (count 9). He pled guilty to counts 4, 5, 7, 8 and 9 without a plea agreement; later that same day, he pled guilty pursuant to a written plea agreement to count 1. The court dismissed count 6 by the government at sentencing, as part of the plea agreement.
Following the entry of his guilty pleas, Mr. Bucio filed a series of pro se motions with the district court, including a “Motion to be Moved to the Constitutional Side of the Court & Request for Dismissal of Cer*785tain Charges,” a “Motion to Receive Transcripts,” and a “Motion to Continue Sentencing.” Mr. Bucio’s retained counsel then moved to withdraw from the case, which the district court allowed counsel to do, following a hearing. At that hearing, Mr. Bucio’s counsel indicated that Mr. Bu-cio was unhappy with his services. Mr. Bucio alleged that his counsel had performed poorly and had coerced him into pleading guilty. He then orally moved the court for an order allowing him to withdraw his guilty plea. The court did not rule on Mr. Bucio’s various pending motions, but did allow his counsel to withdraw and then set aside time for Mr. Bucio to hire new counsel.
Following that hearing, Mr. Bucio filed a pro se “Notice of Negative-Averment of Plea Agreement,” in which he argued that his plea was not knowing, voluntary or intelligent, and that he should be released from the obligations of his written plea agreement. The district court then overruled Mr. Bucio’s previously filed motion and his pro se Motion to Dismiss Count. When Mr. Bucio failed to retain new counsel, the district court appointed him an attorney pursuant to the Criminal Justice Act.
Following the appointment of new counsel, the district court denied Mr. Bucio’s pro se “Motion to Receive Transcripts.” Mr. Bucio’s counsel then filed a “Motion for Disclosure of Grand Jury Transcripts” and a “Motion for Order for Production of Hearing Transcripts.” Prior to sentencing, the district court denied those motions. Following those denials, Mr. Bucio directed his appointed counsel to endorse and file three new handwritten motions prepared by Mr. Bucio, including a “Motion for Reconsideration of Order Denying Transcripts,” a “Motion to Dismiss the Criminal Case” and a “Motion to Withdraw Guilty Plea.” The district court denied those motions at the sentencing hearing.
The sentencing hearing took place on July 28, 2009. The district court heard evidence and argument regarding Mr. Bucio’s objections to the amount of methamphetamine attributed to him and the probation department’s failure, in the pre-sentence report (“PSR”) it prepared for sentencing, to grant Mr. Bucio an additional one point reduction in his offense level for acceptance of responsibility. After hearing argument and receiving evidence, the district court overruled Mr. Bucio’s objections and determined that his final total offense level under the advisory United States Sentencing Commission, Guidelines Manual (“USSG”), was a 38 which, with a criminal history category of II, yielded an advisory sentencing range of 262 to 327 months. The court sentenced Mr. Bucio to 327 months on Count 1, 60 months on Counts 4, 5 and 9, 120 months on count 7, and 240 months on Count 8, all to run concurrently.
Mr. Bucio timely filed his notice of appeal. On the government’s motion to enforce the appeal waiver contained in the written plea agreement, our court entered an order dismissing Mr. Bucio’s appeal as to Count 1 only. Mr. Bucio persists in his efforts to appeal his conviction and sentence on the remaining Counts.
DISCUSSION
In Anders, the Supreme Court held that if a defendant’s counsel “finds [the defendant’s] case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw.” Anders, 386 U.S. at 744, 87 S.Ct. 1396. Counsel must submit to both the court and his client a “brief referring to anything in the record that might arguably support the appeal.” Id. The defen*786dant may then “raise any points that he chooses.” Id.
The reviewing court must examine all the proceedings to determine whether the appeal is frivolous. Id. “If it so finds it may grant counsel’s request to withdraw and dismiss the appeal.” Id. “On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) [the reviewing court] must, prior to decision, afford the indigent [defendant] the assistance of counsel to argue the appeal.” Id.
In this case, Mr. Rubio has submitted only a letter to the court, in response to his counsel’s Anders brief and motion to withdraw. In his letter he simply “ask[s] the Tenth Circuit to review the record and determine the correctness of counsel’s assessment that no meritorious issues exist.” Letter dated 4/15/2010. The government has declined to file a brief. Accordingly, we base our conclusions on counsel’s brief and our own careful review of the record.
Mr. Bucio urges his counsel to raise the following issues: (1) whether the district court erred in denying Mr. Bucio’s motion to withdraw his guilty plea; (2) whether his speedy trial rights were violated; (3) whether he was denied the right to counsel; (4) whether he was improperly denied the right to have access to the grand jury transcripts; and (5) whether his sentence was procedurally and substantively reasonable. We consider whether any of these issues present a nonfrivolous basis for appeal.
I. Guilty Plea
In order for a guilty plea to be valid, it must be knowing, intelligent and voluntary. See, e.g., United States v. Gigot, 147 F.3d 1193, 1197 (10th Cir.1998). Furthermore, district courts are generally required, under Fed.R.Crim.P. Rule 11, to specifically ensure that a defendant understands the nature of the charge against him/her, the maximum possible penalties, including any applicable mandatory minimum sentences, the rights involved in a jury trial, including the right to confront and cross-examine adverse witnesses, and the general means by which a sentence will be calculated under the guidelines.
Mr. Bucio claims that his then-retained counsel coerced him into pleading guilty and forced him into “an adhesion contract (plea bargain) under duress after being threatened to spend from twenty years to the rest of my life in prison by my attorney.” “Notice of Negative-Averment of Plea Agreement” at 3, R. Vol. 1 at 222. The record reveals that two separate plea hearings were held regarding Mr. Bucio’s guilty pleas; together they encompassed all the counts to which Mr. Bucio pled guilty. Mr. Bucio signed a written detailed plea petition prior to each plea, and the district court entered an order affirming the voluntariness of each plea. We agree with Mr. Bucio’s counsel, who states in his Anders brief that “[b]ased upon the record in the case and the lack of any specifics by Mr. Bucio as to how his plea-counsel was to have coerced his guilty pleas, it would be difficult to say that Mr. Bucio’s pleas were not knowing and voluntary.” Appellant’s Br. at 9.
Mr. Bucio also claims that the district court erred in failing to allow him to withdraw his guilty plea pursuant to Fed. R.Crim.P. 11(d). “We review the district court’s denial of a motion to withdraw a guilty plea for an abuse of discretion.” United States v. Yazzie, 407 F.3d 1139, 1142 (10th Cir.2005) (en banc) (quotation omitted). “[Ujnless it is shown that the trial court acted unjustly or unfairly, there is no abuse of discretion.” United States v. Siedlik, 231 F.3d 744, 748 (10th Cir.2000) (quotation omitted).
*787Rule 11(d)(2)(B) provides that a defendant may withdraw a guilty plea “after the court accepts the plea, but before it imposes sentence if: ... the defendant can show a fair and just reason for requesting the withdrawal.” We have articulated seven factors for a district court to consider when analyzing a motion to withdraw a guilty plea. Yazzie, 407 F.3d at 1142.1 Examination of these factors leads to the clear conclusion that the district court did not abuse its discretion in denying Mr. Bucio’s request to withdraw his guilty plea. While Mr. Bucio did protest his innocence in his pro se “Notice of Negative-Averment of Plea Agreement,” both the government and the court would have been inconvenienced if the court granted the motion to withdraw, inasmuch as Mr. Bu-cio pled guilty on the day the trial was supposed to begin. Furthermore, Mr. Bu-cio delayed some four months before making his oral motion to withdraw his guilty plea, and he made it only after he saw the draft PSR and realized that a stiff sentence was being contemplated. Finally, as discussed above, we have no doubt that Mr. Bucio’s guilty plea was knowing and voluntary. We therefore perceive absolutely no abuse of discretion in the district court’s denial of Mr. Bucio’s motion to withdraw his guilty plea.
II. Speedy Trial
Mr. Bucio also claims his speedy trial rights were violated by a purported delay in the proceedings against him. We agree with his counsel that this argument is frivolous. First, he failed to raise this issue before the district court until very late — after his trial date and guilty plea had been entered, and just a few days prior to his sentencing. Furthermore, it fails on its merits. “In determining whether a defendant’s Sixth Amendment right to a speedy trial has been violated, a court must balance four factors: (1) the length of delay; (2) the reason for delay; (3) the defendant’s assertion of his right; .and (4) any prejudice to the defendant.” United States v. Toombs, 574 F.3d 1262, 1274 (10th Cir.2009) (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)). No single factor is “necessary or sufficient to conclude a violation has occurred. Instead, the factors are related and must be considered together along with other relevant circumstances.” Id. Even assuming the one year and one month period of delay in Mr. Bucio’s case is presumptively prejudicial, the remaining factors demonstrate the frivolousness of this argument. As Mr. Bucio’s counsel points out, Mr. Bucio is the one who sought and obtained virtually all the continuances in this case. “Delays attributable to the defendant do not weigh in favor of a Sixth Amendment violation.” Id. Furthermore, as indicated above, Mr. Bu-cio only raised this issue, somewhat cursorily, a few days before sentencing, and after he had pled guilty. Finally, given his guilty plea and, with respect to Count 1, his explicit waiver of appellate rights, it is hard to discern what prejudice Mr. Bucio suffered because of any delay. Thus, this issue presents no nonfrivolous basis for an appeal.
III. Denial of Right to Counsel
The only conceivable claim Mr. Bucio could make as to the denial of counsel *788would be to argue that his retained counsel moved to and was permitted to withdraw as counsel following Mr. Bucio’s guilty plea. The district court instructed Mr. Bucio to obtain new counsel and when he failed to do that, the court appointed counsel. That counsel represented Mr. Bucio through his sentencing. We can perceive no prejudice to Mr. Bucio, or any consequence at all, from this series of events. We again agree with his counsel that “[i]t would be difficult to say that Mr. Bucio. was denied counsel and, if he was, that his waiver [of counsel for a brief period] was not knowing, voluntary and intelligent.” Appellant’s Br. at 15.
IV. Denial of Right to Grand Jury Transcripts
Next, Mr. Bucio would like to argue that the district court erred when it failed to grant his motion to disclose the grand jury transcripts related to his case. He made this motion some six months after his guilty plea and he claimed that the transcripts contained “Brady and/or Giglio witness material and/or statements that should have been disclosed to the defense prior to Mr. Bucio’s plea in the case.... ” Mot. at 1, R. Vol. 1 at 243. The district court denied the motion, characterizing Mr. Bucio’s request as a “fishing expedition” because he “has not made a strong showing of particularized need that outweighs the public interest in secrecy of grand jury proceedings.” Mem. & Order at 2, R. Vol. 2 at 9. Mr. Bucio provides no better explanation on appeal; it is therefore clear that the district court did not abuse its discretion in denying Mr. Bucio access to the grand jury transcripts.
V. Reasonableness of Sentence
Finally, Mr. Bucio attempts to challenge the reasonableness of his sentence on two grounds: (1) the district court erred in calculating the amount of methamphetamine attributable to him and failed to reduce his total offense level by one point for timely acceptance of responsibility; and (2) his resulting sentence is unreasonable. This argument, too, fails to clear the frivolousness hurdle.
Following United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) and the cases derived therefrom, we review all sentences for reasonableness under a deferential abuse of discretion standard. See Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); see also United States v. Smart, 518 F.3d 800, 805 (10th Cir.2008) (“[W]e now review all sentences — whether inside, just outside, or significantly outside the Guidelines range — under a deferential abuse-of-discretion standard.”). Reasonableness has two parts: procedural reasonableness and substantive reasonableness. Mr. Bucio appears to challenge both.
“Procedural review requires us to consider whether the district court committed any ‘significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing adequately to explain the chosen sentence.’ ” United States v. Bergman, 599 F.3d 1142, 1150 (10th Cir.2010) (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). We have more specifically stated, with respect to Guidelines calculations, the following:
In determining whether the district court correctly calculated the recommended Guidelines range, we review de novo the district court’s legal conclusions pertaining to the Guidelines and review its factual findings, including its *789determination of the quantity of drugs for which the defendant is held accountable under the Guidelines, for clear error. Drug quantities employed by the district court to calculate the applicable Guidelines range may be said to be clearly erroneous only “when the district court’s finding was without factual support in the record or we are left with the definite and firm conviction that a mistake has been made.”
United States v. Todd, 515 F.3d 1128, 1135 (10th Cir.2008) (quoting United States v. Dalton, 409 F.3d 1247, 1251 (10th Cir.2005)) (other citations omitted); see also United States v. Cardenas-Alatorre, 485 F.3d 1111, 1119 (10th Cir.2007) (holding that, for a finding to be clearly erroneous, the “finding must be more than possible or even probably wrong; the error must be pellucid to any objective observer”) (further quotation omitted).
The district court found that Mr. Bucio was responsible for the distribution of at least 1.5 kilograms of methamphetamine. We have carefully read all testimony relating to methamphetamine transactions involving Mr. Bucio, and there is ample evidence supporting the drug quantities calculated by the district court.
Furthermore, Mr. Bucio claims error because the district court failed to grant him a further one-point reduction for timely acceptance of responsibility under USSG § 3El.l(b). USSG § 3El.l(b) provides for the reduction upon the motion of the government when a defendant has pled guilty in a timely manner “thereby permitting the government to avoid preparing for trial.” Id. Given that Mr. Bucio did not plead guilty until the morning trial was to commence and that the government did not move for the reduction, it is pellucidly clear that Mr. Bucio is not entitled to the one-point reduction.
Finally, Mr. Bucio appears to challenge the substantive reasonableness of his sentence. “A sentence is substantively unreasonable if the length of the sentence is unreasonable given the totality of the circumstances in light of the 18 U.S.C. § 3553(a) factors.” United States v. Haley, 529 F.3d 1308, 1311 (10th Cir.), cert. denied, — U.S. -, 129 S.Ct. 428, 172 L.Ed.2d 310 (2008). “Sentences imposed within the correctly calculated Guidelines range ... may be presumed reasonable on appeal.” Id. Mr. Bucio can rebut that presumption by demonstrating that the 18 U.S.C. § 3553(a) factors justify a lower sentence. United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir.2006) (per curiam). After carefully reviewing the record, we can conceive of no basis upon which Mr. Bucio can seriously argue that he has rebutted the presumptively reasonable sentence imposed by the district court.
CONCLUSION
We agree with Mr. Bucio’s counsel that no meritorious basis exists for Mr. Bucio’s appeal of either his conviction or his sentence. We therefore GRANT his counsel’s motion to withdraw and DISMISS this appeal.
This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1.
. The seven factors are "(1) whether the defendant has asserted his innocence; (2) whether withdrawal would prejudice the government; (3) whether the defendant delayed in filing his motion, and if so, the reason for the delay; (4) whether withdrawal would substantially inconvenience the court; (5) whether close assistance of counsel was available to the defendant; (6) whether the plea was knowing and voluntary; and (7) whether the withdrawal would waste judicial resources.” Yazzie, 407 F.3d at 1142 (quotation omitted). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479666/ | SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that appellant’s motion for bail is hereby DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479672/ | OPINION
ROTH, Circuit Judge:
Thomas Evanko has sued Defendant Management and Training Corporation, operator of the Keystone Job Corps facility, for negligence arising from injuries he suffered when three students left the facility without permission and one of them struck him in the face. The District Court granted summary judgment in favor of Defendant, holding that it owed no duty of care to Evanko. Evanko has timely appealed and argues genuine issues of material fact existed.
The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of a grant of summary judgment is plenary. Nationwide Mut. Ins. Co. v. Riley, 352 F.3d 804, 806 n. 3 (3d Cir.2003). We will affirm.
A plaintiff alleging negligence “must demonstrate that the defendant owed a duty of care to the plaintiff, the defendant breached that duty, the breach resulted in injury to the plaintiff and the plaintiff suffered an actual loss or damage.” Brisbine v. Outside In Sch. of Experiential Educ., Inc., 799 A.2d 89, 93 (2002) (quoting Brezenski v. World Truck Transfer, Inc., 755 A.2d 36, 40 (2000)). “Generally, there is no duty to control the acts of a third party unless the ‘defendant stands in some special relationship’ ” either to the third party actor or to the injured person. Id. at 93 (quoting Brezenski, 755 A.2d at 40). Pennsylvania law limits the “special relationship” duties to the four recognized in the Restatement (Second) of Torts: (1) a *143parent’s duty to control a child; (2) a master’s duty to control a servant; (3) the duty of a possessor of land to control a licensee; and (4) the duty of those in charge of an individual with dangerous propensities to control the individual. See Restatement (Second) of Torts §§ 316-319 (1965). Only the first and last of these relationships are potentially applicable to the facts of the instant case.
As the District Court observed, there is no “special relationship” under the applicable Restatement sections — and, thus, no duty — unless the defendant knew or should have known that the third party actor was likely to cause injury. See Frey By and Through Frey v. Smith By and Through Smith, 454 Pa.Super. 242, 685 A.2d 169, 174 (1996) (“[I]f the injury [inflicted by a child] ought to have been foreseen by the parents, their negligence is the proximate cause of the injury.”); see also Restatement (Second) of Torts § 319 (1965) (“One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing sueh harm.”).
Here, on the record presented, no reasonable jury could conclude that Evanko’s injury was foreseeable to Defendant. The student who struck Evanko had a clean criminal record, and though he had committed a number of minor infractions while at the facility, none of those infractions evidenced a tendency to commit violent or criminal behavior. The histories of the other two students are of no moment, since they did not cause any injury to Evanko. Finally, though Evanko attempts to portray the Keystone Job Corps as a detention or incarceration facility, we agree with the District Court that he failed to produce any evidence to support a finding that the students are a “special class” of dangerous individuals.
Accordingly, we will affirm the judgment of the District Court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479674/ | OPINION
POLLAK, District Judge.
Appellant Jeff Hause appeals the dismissal of his suit for lack of subject matter jurisdiction. The District Court for the District of New Jersey found that Hause failed to exhaust his administrative remedies as required by the Federal Torts Claims Act (FTCA), 28 U.S.C. § 2675(a).
I.
Hause alleges that, on March 3, 2006, while walking outside of the United States Postal Service (USPS) in Kearny, New Jersey, he slipped and fell due to icy and snowy conditions. On February 26, 2007, the USPS received a Form-95 notice of tort claim that incorrectly listed the incident as occurring in “Cranbury Township, New Jersey.” The USPS denied the claim in a letter dated October 1, 2007, after the USPS’s investigation turned up no evidence that there had been an accident at the Cranbury USPS facility or that there was any negligence on the part of the Postal Service. On December 6, 2007, Hause filed a complaint (“Complaint # 1”) in the District Court alleging that he slipped and fell at the Kearny USPS facility. Complaint # 1 alleged that Hause had presented notice of an administrative claim under the FTCA by submission of a Form-95. The government filed an answer that assumed the accident occurred in Cranbury Township and that the complaint contained a typographical error. Two days following the filing of the answer, appellant’s counsel and government counsel had a conversation, during which they both first became aware that the Form-95 identified the wrong location. The District Court dismissed Complaint # 1 for failure to exhaust since the administrative claim stated the wrong location. Hause then filed a second complaint (“Complaint # 2”) which alleged that service of Complaint # 1 was sufficient administrative notice. The District Court *159dismissed Complaint # 2 for failure to exhaust administrative remedies.
II.
The standard of review for a dismissal for lack of subject matter jurisdiction is plenary. See Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir.2000). The FTCA requires that, before filing a complaint, a claimant “shall have first presented the claim to the appropriate Federal agency.” 28 U.S.C. § 2675(a). The requirement that a sum-certain claim be first presented to the agency involved is a prerequisite to the federal courts’ subject matter jurisdiction. White-Squire v. USPS, 592 F.3d 453, 456-57 (3d Cir.2010). In addition, as the FTCA is a waiver of sovereign immunity by the United States, its requirements are to be strictly construed. Roma v. United States, 344 F.3d 352, 362 (3d Cir.2003). The FTCA does not require that the claimant’s notice present every theory of liability, but the claimant’s submission must, at least, “give[ ] the agency written notice of his or her claim sufficient to enable the agency to investigate.” Id. However, “[a] plaintiff cannot present one claim to the agency and then maintain suit on the basis of a different set of facts” Id.
Complaint # 1 fails to constitute adequate notice for two reasons. First, complaint # zl in its allegations states that the Form-95, and not the complaint, was the administrative notice of the claim. The USPS could not be fairly apprised it was receiving notice in a document that by its own terms was not the notice of the claim. Second, the purpose of the notice requirement is to encourage investigation and settlement of claims before legal proceedings are initiated, thereby reducing the burden on the courts and the government. See Brady v. United States, 211 F.3d 499, 503 (9th Cir.2000) (“Thus, although her first complaint may have given the agency ‘notice’ in one sense of the word, it did not give the agency the timely notice of a live controversy that would have allowed the agency to investigate administratively and possibly settle the case before it resurfaced in district court.”). The document that, in the case at bar, initiated proceedings in the District Court cannot fulfill the requirement of the FTCA that a claimant “shall have first presented” (emphasis added) the claim to the agency before filing suit.
III.
For the reasons stated, we will affirm the District Court’s order of dismissal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479676/ | OPINION
PER CURIAM.
Petitioner Edgar Alan Alvarez Cano, a native of Mexico, seeks review of a final order of removal. For the reasons that follow, we will deny the petition for review.
I.
Alvarez Cano entered the United States in 1994 at the age of seven as a nonimmi-grant visitor. He failed to depart, and in 2006, the Department of Homeland Security (“DHS”) commenced removal proceedings. Alvarez Cano applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), and voluntary departure as an alternative to removal.
Alvarez Cano testified that he wishes to stay in the United States because he does not know what life in Mexico is like, that he fears gang violence and the risk of being kidnapped, and that he fears police and government corruption.
The Immigration Judge (“IJ”) believed Alvarez Cano’s testimony, and acknowledged that the State Department country report for Mexico indicates that kidnapping, gang violence, and government corruption are serious and widespread problems. Nevertheless, the IJ determined that Alvarez Cano failed to establish past persecution or a well-founded fear of future persecution, and that, in any event, his asylum application was untimely. The IJ found that Alvarez Cano failed to file an asylum application within one year after reaching the age of majority, and that he failed to meet the “extraordinary circumstances” exception to the time limit. See 8 U.S.C. § 1158(a)(2)(D). The IJ also concluded that he failed to meet the burden of proof for withholding of removal or CAT relief, and granted his application for voluntary departure. The Board of Immigration Appeals (“BIA”) dismissed his appeal. Alvarez Cano filed a timely petition for review.
II.
We lack jurisdiction under 8 U.S.C. § 1158(a)(3) to review the denial of Alvarez Cano’s asylum application as untimely. Although we cannot review the merits of his asylum claim, we retain jurisdiction to consider the denial of his applications for withholding of removal and protection under the CAT. Tarrawally v. Ashcroft, 338 F.3d 180, 185-86 (3d Cir.2003). Where, as here, the BIA adopts the findings of the IJ and discusses some of the bases for the IJ’s opinion, this Court will review both opinions. See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.2004). We review factual findings for substantial evidence, see Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d Cir.2007), upholding them “unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.2003) (en banc).
III.
To qualify for withholding of removal, an alien must establish that it is more likely than not that his “life or freedom would be threatened in th[e] country [of removal] because of the alien’s race, religion, nationality, membership in a particular social group or political opinion.” 8 U.S.C. § 1231(b)(3)(A); Tarrawally, 338 F.3d at 186. To be eligible for CAT relief, an alien must show that it is more likely than not that he will be tortured if removed to the country in question. 8 C.F.R. § 1208.16(c)(2).
We agree that Alvarez Cano failed to prove that he would be persecuted on ac*166count of a protected ground. See Ndayshimiye v. Att’y Gen., 557 F.3d 124, 129 (3d Cir.2009) (an asylum applicant must show a nexus between persecution and one of the five protected grounds). His brief testimony expressed only a subjective, generalized fear of life in Mexico and of being kidnapped because of his family connections in the United States. He presented no evidence that anyone in Mexico has a particular interest in him, or that he has been threatened in any way. Given these facts, substantial evidence supports the IJ’s and BIA’s determination that Alvarez Cano does not qualify for withholding of removal, and nothing in the record supports his claim for CAT protection. Accordingly, we will deny the petition for review. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479679/ | OPINION
PER CURIAM.
Chafik Sebki, a native and citizen of Algeria, seeks review of a final order of removal entered by Board of Immigration Appeals (“BIA”). We will deny the petition for review.
I.
Sebki, currently age forty-one, entered the United States in 1993 on a tourist visa and overstayed. The Department of Homeland Security (“DHS”) served a Notice to Appear in 2007. Sebki conceded removability under INA § 237(a)(1)(B), and he applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). He also asked at an initial calendar hearing that he be considered for voluntary departure. Sebki claims that he was persecuted in Algeria, and fears returning there, mainly due to confrontations that he had with Islamic extremists while he was an active member of a secular political party called the Front des Forces Socialistes (“FFS”). Sebki also claims to have suffered persecution due to his Berber ethnicity.
The Immigration Judge (“IJ”) rejected the asylum application as untimely filed, and denied withholding of removal and CAT relief. With regard to withholding, the IJ found insufficient evidence to establish past persecution on the basis of ethnicity or political opinion, and no showing that it is more likely than not that Sebki would be targeted for harm upon return to Algeria. The IJ did not expressly address the issue of voluntary departure. On Seb-ki’s appeal, the BIA agreed with the IJ’s analysis and denied relief. The BIA further held that the request for voluntary departure was waived due to Sebki’s failure to present any evidence to establish his prima facie eligibility for that relief. Sebki timely filed a petition for review in this Court.
II.
We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review the denial of Sebki’s *186withholding of removal and CAT claims.1 “[W]hen the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We review determinations regarding withholding of removal and CAT relief under the substantial evidence standard, and we will not disturb those findings “unless the evidence not only supports a contrary conclusion, but compels it.” Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir.2005) (quotation marks omitted).
Sebki earned a degree in nursing in Algeria and began working at a hospital in Algiers in 1991. He also joined the FFS, an opposition political party, in 1991. Seb-ki attended party meetings, sought to promote the FFS’s agenda, and organized an FFS chapter at the hospital. His father, a retired professor who remains in Algeria, also was an FFS official.
Sebki related three primary incidents of past harm in Algeria stemming from his political activities. First, in September 1992, Sebki and others had a confrontation with a rival political party, the Islamic Salvation Front (“FIS”), after fundamentalist members of the FIS sought to take control of the hospital mosque. Sebki was pushed from the mosque, and an FIS member threatened to have Sebki shot if he failed to leave. Following this incident, Sebki was warned by two colleagues at the hospital that the FIS was threatening his life. Sebki ceased his political activities out of fear for his safety.
Second, two unidentified men on the street, whom Sebki believed were Muslim extremists, pointed their fingers at Sebki and stared at him. Sebki felt threatened by their actions. Third, in early 1993, Sebki caused the arrest of two men “wearing Islamic clothing” after he found those men trying to steal supplies from the hospital pharmacy. Once it became known at the hospital that Sebki had caused the arrest, Sebki feared for his safety. In July 1993, he arrived in the United States. Although the Algerian government dissolved the FIS in 1992, Sebki claims to fear returning to Algeria mainly because FIS members or other Muslim extremists would seek revenge against him.
“The threshold for establishing eligibility for withholding of removal is higher than that for establishing entitlement to asylum and requires the alien to demonstrate a ‘clear probability’ that, upon removal to the country of origin, his or her ‘life or freedom would be threatened on account of one of the statutorily enumerated factors.’ ” Obale v. Att’y Gen., 453 F.3d 151, 161 (3d Cir.2006) (quoting Senathira *187jah v. INS, 157 F.3d 210, 215 (3d Cir.1998)). The clear probability standard is met if petitioner shows that it is more likely than not that he will suffer persecution. Miah v. Ashcroft, 346 F.3d 434, 439 (3d Cir.2003). Persecution includes “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom,” but it “does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993).
We cannot conclude that the record compels a finding that Sebki is entitled to withholding of removal. As the BIA noted, Sebki was never threatened, mistreated, or abused by the Algerian government, either on account of his ethnicity or his activities with the FFS. In addition, while Sebki was threatened at the hospital during the mosque incident, the FIS was later banned by the Algerian government, and Sebki was unharmed during the several months that he remained in Algeria prior to his departure. In general, unfulfilled threats qualify as persecution “only in the most extreme circumstances, such as where they are of a most immediate or menacing nature or if the perpetrators attempt to follow through on the threat.” Bejko v. Gonzales, 468 F.3d 482, 486 (7th Cir.2006). We reject Sebki’s argument that the threats he received compel the conclusion that he suffered persecution on account of his political activities.
The record also supports the determination that Sebki lacks an objective basis for his alleged fear of future persecution at the hands of the men whom he caused to be arrested in 1993, or by others who allegedly would be interested in harming Sebki due to his past activities. As the IJ noted, Sebki’s fear is based largely upon speculation offered by Sebki and his family members regarding the purported on-going desire of unidentified individuals to harm Sebki. As noted, Sebki was unharmed in Algeria after the threat he received in 1992, and he cites no specific evidence to establish that anyone in particular remains interested in harming him now. Further, as the BIA noted, Sebki’s father, a former FFS official, has remained in Algeria without incident. In short, the record does not compel the conclusion that Sebki more likely than not faces future persecution.2
Finally, we discern no basis to disturb the finding that Sebki fails to qualify for CAT protection. Sebki claims to fear torture in Algeria, citing evidence in the 2005 State Department Report that torture remains a significant human rights problem. He also cites the Algerian government’s amnesty program, which he claims has resulted in the release of many “Islamic militants” from prison. Petitioner’s Br. at 21. However, as respondent notes, the State Department Report also reflects that Algerian police “were generally effective at maintaining order throughout the country,” and that “[l]ow levels of corruption existed,” which undermines Sebki’s claim that the police would ignore threats of torture by Islamic militants. After a careful review of the record, we find substantial evidence to support the finding that Sebki failed to show it more likely than not that he would be tortured in Algeria. See Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir.2003).
*188III.
For the foregoing reasons, we will deny the petition for review.
. We lack jurisdiction to review the asylum claim because Sebki's application was denied as unLimely filed. See Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir.2003). While Sebki argues that we should review as a "question of law” the finding that he failed to show extraordinary circumstances to excuse his late filing, our case law is clear that we lack jurisdiction. See Jarbough v. Att'y Gen., 483 F.3d 184, 189 (3d Cir.2007) ("challenges to the BIA's extraordinary or changed circumstances determinations do not constitute 'questions of law' within the meaning of [8 U.S.C.] § 1252(a)(2)(D)").
We also lack jurisdiction to review the denial of voluntary departure. See 8 U.S.C. § 1229c(f); Obale v. Att’y Gen., 453 F.3d 151, 156 (3d Cir.2006). Sebki argues that the BIA "failed to properly review the record” and erred in finding that he failed to state a prima facie case for voluntary departure, thereby working a denial of "due process.” However, "[r]ecasting challenges to factual or discretionary determinations as due process or other constitutional claims is clearly insufficient to give this Court jurisdiction^]” Jarbough, 483 F.3d at 190. We thus reject Sebki's jurisdictional argument. We note, in any event, that we discern no error in the BIA’s decision given Sebki’s clear failure to establish his prima facie eligibility for voluntary departure.
. Sebki argues that the "country conditions documentation” shows a pattern or practice of persecution against Berber members of the FFS. Petitioner’s Br. at 19. Sebki failed, however, to present this pattern or practice argument to the BIA, and thus we lack jurisdiction to review it. See 8 U.S.C. § 1252(d)(1); Lin v. Att’y Gen., 543 F.3d 114, 120 (3d Cir.2008). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479681/ | OPINION
PER CURIAM.
Petitioner Sekou Oumarou Koita, a native and citizen of Mali, entered the United States in 2000 without being admitted or paroled. (He used a fraudulent passport.) On November 21, 2003, the Department of Homeland Security (“DHS”) issued a Notice to Appear (“NTA”), charging that he was removable pursuant to Immigration & Nationality Act (“INA”) § 212(a)(6)(A)©, 8 U.S.C. § 1182(a)(6)(A)©, as an alien present in the United States without being *209admitted or paroled. The allegations were conceded. On January 16, 2004, Koita, through counsel, filed an application for asylum under INA § 208(a), 8 U.S.C. § 1158(a), withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and protection under the Convention Against Torture, 8 C.F.R. §§ 1208.16(c), 1208.18, in which he claimed that he was persecuted in Mali on the basis of his political opinion. Koita later withdrew his asylum application because it was untimely-
During the merits hearing held on February 14, 2008, Koita testified that he was a Secretary of the Association of Pupils and Students of Mali (“AEEM”), a student organization at the Faculté des Sciences Juridiques et Economiques (part of the University of Bamako), a public university. Koita attended the university for about five months from November, 1999 to March, 2000, and he hoped to become a lawyer. As one of five Secretaries in AEEM, Koita served as a liaison between the students and organization leaders. During the relevant time period, January, 2000, through March, 2000, AEEM complained to the government that teachers were not being paid and students were not receiving stipends for books and supplies. The government was unresponsive and AEEM called for a strike. Shortly after the strike began in March, 2000, Koita fled to Niger and eventually came to the United States.
Koita testified that he learned from letters that five AEEM members were arrested during the strike. Since the strike, police have continued to search for him. He has monthly contact with his mother, who remains in Mali, and she has told him that, as recently as 2007, the police came to her home looking for him. As a result of the government’s continued pursuit' of him for his involvement in AEEM, an organization the government believes is trying to destroy the country, he fears that he will be put in jail and killed if he returns to Mali. On cross-examination, Koita admitted that he was never injured or arrested before or during the 2000 strike. He told the IJ that he did not timely file for asylum when he first came to the United States because he hoped that conditions in Mali would improve.
Koita presented numerous exhibits in support of his case, including, in pertinent part, the 2002, 2003, 2005 and 2006 U.S. State Department Country Reports on Human Rights Practices in Mali; the 1995 State Department’s Profile of Asylum Claims and Country Conditions in Mali; an item entitled “VERBAL LAWSUIT,” which appears to be committee minutes from a meeting of the student association from March 2, 2000, A.R. 283-84; a letter from Modibo Kane Fofana, General Secretary of AEEM, dated March 10, 2004, A.R. 275-76; a letter from the General Secretary of AEEM, dated February 7, 2005 and addressed to Koita, A.R. 279-80; a certificate of Koita’s attendance at the University, A.R. 287-88; the 2003 State Department’s Background Note on Mali, A.R. 344-53; and a letter addressed to Koita from the Secretary General of the Coordination Committee of AEEM, Cheick Mohamed Bady, dated July 20, 2007, indicating that there was still a search for certain unidentified students going on in Mali and advising Koita to stay in exile, A.R. 269-70.
The Immigration Judge denied all relief, concluding that Koita had not testified credibly, and, in the alternative, that he failed to meet his burden of proof for entitlement to withholding of removal under the statute or the CAT. Specifically, the IJ found that Koita did not suffer past persecution; therefore, he was not entitled to a presumption of future persecution. In addition, he failed to meet his burden of *210proof to establish that he faced a “clear probability” of future persecution on account of his political opinion. The IJ found that there was no evidence that would establish objectively that there was a risk to any exiled students who had previously participated in the 2000 strike. Koita’s exhibits, including the 2006 Country Report, while referencing difficulties between students and the government, did not support his contention concerning the plight of students who had been in exile since 2000.1
Furthermore, the IJ concluded that Koi-ta failed to prove that he would be singled out for persecution upon his return to Mali. Noting that a great deal of time had passed since the 2000 demonstration/strike, the IJ faulted Koita for failing to present independent evidence from his mother, for example, that would support his assertion that he specifically was the target of a continuing investigation, especially since he talked to his mother on a monthly basis. The IJ also concluded that Koita had not shown that it was more likely than not he would be tortured in Mali. The IJ ordered Koita removed to Mali. Koita appealed to the Board of Immigration Appeals.
In a decision dated June 23, 2009, the Board assumed without deciding that Koi-ta had testified credibly, but the Board agreed with the IJ that Koita simply had not met his burden of proof even assuming that he testified credibly. The Board agreed with the IJ, for the reasons given by the IJ, that Koita had not established past persecution or a clear probability of future persecution. As to the probability of future persecution in particular, the Board specifically held that, because Koita claimed that his mother told him that authorities continued to look for him in Mali, it was reasonable to expect him to provide an affidavit or letter from her, or other persuasive, first-hand evidence, to substantiate this claim. Without the letter from his mother, his claim that Mali authorities continued to look specifically for him over nine years after his departure was otherwise based only on “oral hearsay.” A.R. 3-4. The Board agreed with the IJ’s CAT conclusion as well. Koita timely petitioned for review of the Board’s decision.
We will deny the petition for review. We have jurisdiction to review the final order of removal under 8 U.S.C. § 1252(a)(1), (b)(1). Where the Board adopts and affirms the opinion of the IJ, we review the IJ’s decision to the extent of the adoption and affirmance. See Abdulai v. Ashcroft, 239 F.3d 542, 549 n. 2 (3d Cir.2001). The agency’s factual determinations are upheld if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. Immigration & Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Under this deferential standard, the petitioner must establish that the evidence does not just support a contrary conclusion but compels it. See id. at 481 n. 1, 112 S.Ct. 812; Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). The alien bears the burden of proof of establishing that he is a refugee and that he has suffered past persecution or has a well-founded fear of persecution. See id.; 8 G.F.R. § 1208.13(a).
Under INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A), withholding of removal is *211not discretionary: “The Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group or political opinion.” The test for relief is, however, more exacting than the asylum test because it requires the alien to show by a “clear probability” that his life or freedom would be threatened on account of a protected ground in the proposed country of removal. Immigration & Naturalization Serv. v. Stevic, 467 U.S. 407, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). See also Immigration & Naturalization Serv. v. Cardoza-Fonseca, 480 U.S. 421, 430, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (“would be threatened” standard has no subjective component). Persecution is defined as “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.” Kibinda v. Att’y Gen. of U.S., 477 F.3d 113, 119 (3d Cir.2007) (quoting Fatin v. Immigration & Naturalization Serv., 12 F.3d 1233, 1240 (3d Cir.1993)). It refers only to “severe” conduct and “does not encompass all treatment our society regards as unfair, unjust or even unlawful or unconstitutional.” Id.
Koita has waived the issue of whether he suffered past persecution. See Petitioner’s Brief, at 15 n. 4.2 The record in any event does not compel a finding of past persecution because Koita was never arrested or harmed on account of his affiliation with the student organization, AEEM. He has not identified a single event that caused him extreme harm or suffering sufficient to meet the standard of persecution. See Kibinda, 477 F.3d at 119; Fatin, 12 F.3d at 1240. Because he failed to establish past persecution, he was not entitled to the future persecution presumption. See 8 C.F.R. § 1208.16(b)(l)(i). With respect to the future persecution issue, the Board’s and IJ’s determination that Koita did not show a clear probability that the government of Mali would arrest or harm him now on the basis of his political activities in 2000 was supported by reasonable, substantial, and probative evidence on the record considered as a whole. Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. 812.
Koita failed to present any persuasive evidence that the Mali government currently seeks out members of the student group AEEM who played some role in the 2000 strike/demonstration. Because Koita’s problems in Mali are so remote in time, it was not sufficient for him to show merely that he was involved with AEEM ten years ago. The record establishes that Koita offered Country Reports, internet articles, and letters, some of which were addressed to him or referenced him, in support of his allegations. The IJ did not ignore Koita’s documentary evidence. In his brief, Koita specifically discusses four items. See Petitioner’s Brief, at 11-12. The letter from Cheick Mohamed Bady describes trouble at the Faculté des Sciences Juridiques et Economiques at the beginning of 2007 and states that leaders have been imprisoned. It warns exiled students to stay away but it does not persuasively state that government authorities have any interest in arresting students who participated in the 2000 strike/demonstration. A.R. 269.
The March 10, 2004 letter from Secretary General Modibo Kane Fofana states that demonstrators had been gassed and 40 students had been arrested. A.R. 275. This recounting of events appears, howev*212er, to refer to recent difficulties and not the 2000 strike/demonstration. Furthermore, the letter makes no persuasive reference to government authorities having any current interest in students who participated in the 2000 strike/demonstration. The February 7, 2005 letter from an unidentified AEEM General Secretary states that the crisis started up again in 2004-2005. The author “lost” three of his friends and even “actual leaders” were on a “black list.” A.R. 279. The author warns exiled students to stay away, but, again, the letter makes no persuasive reference to government authorities having any current interest in students who participated in the 2000 strike/demonstration. Last, the March 2, 2000 minutes (“Verbal Lawsuit”) from a student meeting held at the University states that' the situation is tense and certain “comrades” were in prison, but the letter states that Koita himself was known to have gotten out of Mali. A.R. 283. These minutes do not address current conditions in Mali.3
The IJ properly gave little weight to Koita’s documentary evidence and properly concluded that it was inadequate to support an assertion that the government of Mali is currently interested in detaining and harming AEEM members who participated in the 2000 strike/demonstration. In light of the insufficient evidence, the IJ and the Board properly focused on the only thing that specifically supported Koita’s purported fear of harm: that his mother has told him that authorities continued to look for him in Mali. But Koita did not provide an affidavit or letter from his mother, or other persuasive evidence to substantiate this assertion, and his failure to present any documentation from his mother was not reasonable because he testified that he talks to her on a monthly basis.
Koita contends in his brief that the Board erred in denying his claim based on the absence of corroborative evidence from his mother. See Petitioner’s Brief, at 9-10. We have held that corroboration may be required, even from credible applicants, see Abdulai, 239 F.3d at 554, where it is (1) reasonable to expect the applicant to produce corroboration, (2) the applicant fails to corroborate, and (3) the applicant fails to adequately explain that failure. Chukwu v. Att’y Gen. of U.S., 484 F.3d 185, 191-92 (3d Cir.2007) (citing Toure v. Att’y Gen. of U.S., 443 F.3d 310, 323 (3d Cir.2006)). The IJ and the Board in Koi-ta’s case fully complied with this test. The Board, for example, concluded that it was reasonable to expect corroboration because Koita’s assertions otherwise were based on hearsay and were not persuasive. Moreover, Koita claimed that his mother had personal knowledge of the Mali authorities’ continued interest in him nine years after the 2000 strike, and he testified that he talked to his mother as recently as January, 2008. When questioned, he had no reasonable explanation for his failure to request a letter from his mother corroborating his claims. A.R. 190-193.
Last, Koita contends that the Board acted improperly in not reaching the issue of his credibility. This argument lacks merit because the Board, indeed any court or agency, is not required to decide an issue that is not necessary to the result it reaches. See Immigration & Natural*213ization Serv. v. Bagamasbad, 429 U.S. 24, 25, 97 S.Ct. 200, 50 L.Ed.2d 190 (1976). In light of the substantial evidence that supported the Board’s determination that Koi-ta’s fear of future persecution was not clearly probable, the Board was not required to address his credibility.
For the foregoing reasons, we will deny the petition for review.
. The IJ specifically discussed the 2006 Country Report, which states, under the "Freedom of Assembly” section, that, on November 13, 2006, police fired tear gas into a demonstration of medical students who were seeking higher stipends from the government. Five students, including a woman, were arrested, charged with damaging property, and held for six days before being released. The students’ union claimed that the five were physically and sexually abused while in police custody. A.R. 227.
. Koita also waived review of his CAT claim. See id. In view of that waiver, we will not address the CAT issue.
. One other internet article specifically included in Koita’s appendix, entitled “Mali: Institutional Situation,” which appears to have been authored by a person or persons connected with Montesquieu University-Bordeaux, France, states that AEEM is "the most antiestablishment of the Malian union movements. Its actions laid down the foundations of the ‘revolution’ that overthrew the dictatorship [of General Moussa Traoré in 1991]. Recent action comprised the academic year 1998-99.” A.R. 297. This article does not even reference the 2000 strike/demonstration. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479683/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shawn Rhondu Smithwick appeals the district court’s order denying his 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 deny Smithwick’s motion for appointment of counsel and affirm for the reasons stated by the district court. United States v. Smithwick, No. 5:06-cr-00121-F-1 (E.D.N.C. Oct. 17, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479685/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James D. Tinsley appeals the district court’s orders dismissing his 42 U.S.C. § 1983 (2006) complaint and denying his motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s orders. Tinsley v. Sheriff Rick Davis, No. 1:09-cv-00379-GCM, 2009 WL 3633883 (W-D.N.C. Oct. 30, 2009). We dispense with oral argument because the facts and legal contentions are adequately *255presented 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/8479688/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Robert Demos, Jr., appeals the district court’s order dismissing this action pursuant to 28 U.S.C. § 1915(g) (2006). We have reviewed the record and find no reversible error. Accordingly, we deny leave to proceed in forma pauperis and dismiss the appeal for the reasons stated by the district court. Demos v. Payseur, No. 5:10-cv-00011-FL (E.D.N.C. Jan. 19, 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.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479690/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joyce Branch-Williams appeals the district court’s order dismissing her complaint on the basis of res judicata and collateral estoppel. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Branch-Williams v. Spencer, No. 1:09-cv-02687-JFM, 2010 WL 231746 (D. Md. Jan. 13, 2010); Feb. 17, 2010. We also deny Branch-Williams’ pending motions to expedite, for procedural and substantive relief, for emergency financial relief, and for summary judgment. 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/8479670/ | SUMMARY ORDER
Plaintiff-appellee Doctor’s Associates, Inc. moved under the Federal Arbitration Act, 9 U.S.C. § 4, to compel defendant-appellant Joe Dangtran to arbitrate certain claims in accordance with a franchise agreement between the parties. The District Court granted the motion to arbitrate, and Dangtran brought this timely appeal. We assume the parties’ familiarity with the underlying facts, the procedural history of this action, and the issues raised on appeal.
“We review de novo a judgment of the district court staying or compelling arbitration.” Collins & Aikman Prods. Co. v. Bldg. Sys., 58 F.3d 16, 19 (2d Cir.1995). Undertaking that review, we affirm the District Court’s ruling for substantially the reasons set forth in the Court’s order of October 8, 2009.
*107CONCLUSION
For the foregoing reasons, the October 9, 2009 judgment is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479673/ | OPINION
POLLAK, District Judge.
Appellant Jeff Hause appeals the dismissal of his suit for lack of subject matter jurisdiction. The District Court for the District of New Jersey found that Hause failed to exhaust his administrative remedies as required by the Federal Torts Claims Act (FTCA), 28 U.S.C. § 2675(a).
I.
Hause alleges that, on March 3, 2006, while walking outside of the United States Postal Service (USPS) in Kearny, New Jersey, he slipped and fell due to icy and snowy conditions. On February 26, 2007, the USPS received a Form-95 notice of tort claim that incorrectly listed the incident as occurring in “Cranbury Township, New Jersey.” The USPS denied the claim in a letter dated October 1, 2007, after the USPS’s investigation turned up no evidence that there had been an accident at the Cranbury USPS facility or that there was any negligence on the part of the Postal Service. On December 6, 2007, Hause filed a complaint (“Complaint # 1”) in the District Court alleging that he slipped and fell at the Kearny USPS facility. Complaint # 1 alleged that Hause had presented notice of an administrative claim under the FTCA by submission of a Form-95. The government filed an answer that assumed the accident occurred in Cranbury Township and that the complaint contained a typographical error. Two days following the filing of the answer, appellant’s counsel and government counsel had a conversation, during which they both first became aware that the Form-95 identified the wrong location. The District Court dismissed Complaint # 1 for failure to exhaust since the administrative claim stated the wrong location. Hause then filed a second complaint (“Complaint # 2”) which alleged that service of Complaint # 1 was sufficient administrative notice. The District Court *159dismissed Complaint # 2 for failure to exhaust administrative remedies.
II.
The standard of review for a dismissal for lack of subject matter jurisdiction is plenary. See Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir.2000). The FTCA requires that, before filing a complaint, a claimant “shall have first presented the claim to the appropriate Federal agency.” 28 U.S.C. § 2675(a). The requirement that a sum-certain claim be first presented to the agency involved is a prerequisite to the federal courts’ subject matter jurisdiction. White-Squire v. USPS, 592 F.3d 453, 456-57 (3d Cir.2010). In addition, as the FTCA is a waiver of sovereign immunity by the United States, its requirements are to be strictly construed. Roma v. United States, 344 F.3d 352, 362 (3d Cir.2003). The FTCA does not require that the claimant’s notice present every theory of liability, but the claimant’s submission must, at least, “give[ ] the agency written notice of his or her claim sufficient to enable the agency to investigate.” Id. However, “[a] plaintiff cannot present one claim to the agency and then maintain suit on the basis of a different set of facts” Id.
Complaint # 1 fails to constitute adequate notice for two reasons. First, complaint # zl in its allegations states that the Form-95, and not the complaint, was the administrative notice of the claim. The USPS could not be fairly apprised it was receiving notice in a document that by its own terms was not the notice of the claim. Second, the purpose of the notice requirement is to encourage investigation and settlement of claims before legal proceedings are initiated, thereby reducing the burden on the courts and the government. See Brady v. United States, 211 F.3d 499, 503 (9th Cir.2000) (“Thus, although her first complaint may have given the agency ‘notice’ in one sense of the word, it did not give the agency the timely notice of a live controversy that would have allowed the agency to investigate administratively and possibly settle the case before it resurfaced in district court.”). The document that, in the case at bar, initiated proceedings in the District Court cannot fulfill the requirement of the FTCA that a claimant “shall have first presented” (emphasis added) the claim to the agency before filing suit.
III.
For the reasons stated, we will affirm the District Court’s order of dismissal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479675/ | OPINION
PER CURIAM.
Petitioner Edgar Alan Alvarez Cano, a native of Mexico, seeks review of a final order of removal. For the reasons that follow, we will deny the petition for review.
I.
Alvarez Cano entered the United States in 1994 at the age of seven as a nonimmi-grant visitor. He failed to depart, and in 2006, the Department of Homeland Security (“DHS”) commenced removal proceedings. Alvarez Cano applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), and voluntary departure as an alternative to removal.
Alvarez Cano testified that he wishes to stay in the United States because he does not know what life in Mexico is like, that he fears gang violence and the risk of being kidnapped, and that he fears police and government corruption.
The Immigration Judge (“IJ”) believed Alvarez Cano’s testimony, and acknowledged that the State Department country report for Mexico indicates that kidnapping, gang violence, and government corruption are serious and widespread problems. Nevertheless, the IJ determined that Alvarez Cano failed to establish past persecution or a well-founded fear of future persecution, and that, in any event, his asylum application was untimely. The IJ found that Alvarez Cano failed to file an asylum application within one year after reaching the age of majority, and that he failed to meet the “extraordinary circumstances” exception to the time limit. See 8 U.S.C. § 1158(a)(2)(D). The IJ also concluded that he failed to meet the burden of proof for withholding of removal or CAT relief, and granted his application for voluntary departure. The Board of Immigration Appeals (“BIA”) dismissed his appeal. Alvarez Cano filed a timely petition for review.
II.
We lack jurisdiction under 8 U.S.C. § 1158(a)(3) to review the denial of Alvarez Cano’s asylum application as untimely. Although we cannot review the merits of his asylum claim, we retain jurisdiction to consider the denial of his applications for withholding of removal and protection under the CAT. Tarrawally v. Ashcroft, 338 F.3d 180, 185-86 (3d Cir.2003). Where, as here, the BIA adopts the findings of the IJ and discusses some of the bases for the IJ’s opinion, this Court will review both opinions. See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.2004). We review factual findings for substantial evidence, see Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d Cir.2007), upholding them “unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.2003) (en banc).
III.
To qualify for withholding of removal, an alien must establish that it is more likely than not that his “life or freedom would be threatened in th[e] country [of removal] because of the alien’s race, religion, nationality, membership in a particular social group or political opinion.” 8 U.S.C. § 1231(b)(3)(A); Tarrawally, 338 F.3d at 186. To be eligible for CAT relief, an alien must show that it is more likely than not that he will be tortured if removed to the country in question. 8 C.F.R. § 1208.16(c)(2).
We agree that Alvarez Cano failed to prove that he would be persecuted on ac*166count of a protected ground. See Ndayshimiye v. Att’y Gen., 557 F.3d 124, 129 (3d Cir.2009) (an asylum applicant must show a nexus between persecution and one of the five protected grounds). His brief testimony expressed only a subjective, generalized fear of life in Mexico and of being kidnapped because of his family connections in the United States. He presented no evidence that anyone in Mexico has a particular interest in him, or that he has been threatened in any way. Given these facts, substantial evidence supports the IJ’s and BIA’s determination that Alvarez Cano does not qualify for withholding of removal, and nothing in the record supports his claim for CAT protection. Accordingly, we will deny the petition for review. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479680/ | OPINION
PER CURIAM.
Chafik Sebki, a native and citizen of Algeria, seeks review of a final order of removal entered by Board of Immigration Appeals (“BIA”). We will deny the petition for review.
I.
Sebki, currently age forty-one, entered the United States in 1993 on a tourist visa and overstayed. The Department of Homeland Security (“DHS”) served a Notice to Appear in 2007. Sebki conceded removability under INA § 237(a)(1)(B), and he applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). He also asked at an initial calendar hearing that he be considered for voluntary departure. Sebki claims that he was persecuted in Algeria, and fears returning there, mainly due to confrontations that he had with Islamic extremists while he was an active member of a secular political party called the Front des Forces Socialistes (“FFS”). Sebki also claims to have suffered persecution due to his Berber ethnicity.
The Immigration Judge (“IJ”) rejected the asylum application as untimely filed, and denied withholding of removal and CAT relief. With regard to withholding, the IJ found insufficient evidence to establish past persecution on the basis of ethnicity or political opinion, and no showing that it is more likely than not that Sebki would be targeted for harm upon return to Algeria. The IJ did not expressly address the issue of voluntary departure. On Seb-ki’s appeal, the BIA agreed with the IJ’s analysis and denied relief. The BIA further held that the request for voluntary departure was waived due to Sebki’s failure to present any evidence to establish his prima facie eligibility for that relief. Sebki timely filed a petition for review in this Court.
II.
We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review the denial of Sebki’s *186withholding of removal and CAT claims.1 “[W]hen the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We review determinations regarding withholding of removal and CAT relief under the substantial evidence standard, and we will not disturb those findings “unless the evidence not only supports a contrary conclusion, but compels it.” Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir.2005) (quotation marks omitted).
Sebki earned a degree in nursing in Algeria and began working at a hospital in Algiers in 1991. He also joined the FFS, an opposition political party, in 1991. Seb-ki attended party meetings, sought to promote the FFS’s agenda, and organized an FFS chapter at the hospital. His father, a retired professor who remains in Algeria, also was an FFS official.
Sebki related three primary incidents of past harm in Algeria stemming from his political activities. First, in September 1992, Sebki and others had a confrontation with a rival political party, the Islamic Salvation Front (“FIS”), after fundamentalist members of the FIS sought to take control of the hospital mosque. Sebki was pushed from the mosque, and an FIS member threatened to have Sebki shot if he failed to leave. Following this incident, Sebki was warned by two colleagues at the hospital that the FIS was threatening his life. Sebki ceased his political activities out of fear for his safety.
Second, two unidentified men on the street, whom Sebki believed were Muslim extremists, pointed their fingers at Sebki and stared at him. Sebki felt threatened by their actions. Third, in early 1993, Sebki caused the arrest of two men “wearing Islamic clothing” after he found those men trying to steal supplies from the hospital pharmacy. Once it became known at the hospital that Sebki had caused the arrest, Sebki feared for his safety. In July 1993, he arrived in the United States. Although the Algerian government dissolved the FIS in 1992, Sebki claims to fear returning to Algeria mainly because FIS members or other Muslim extremists would seek revenge against him.
“The threshold for establishing eligibility for withholding of removal is higher than that for establishing entitlement to asylum and requires the alien to demonstrate a ‘clear probability’ that, upon removal to the country of origin, his or her ‘life or freedom would be threatened on account of one of the statutorily enumerated factors.’ ” Obale v. Att’y Gen., 453 F.3d 151, 161 (3d Cir.2006) (quoting Senathira *187jah v. INS, 157 F.3d 210, 215 (3d Cir.1998)). The clear probability standard is met if petitioner shows that it is more likely than not that he will suffer persecution. Miah v. Ashcroft, 346 F.3d 434, 439 (3d Cir.2003). Persecution includes “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom,” but it “does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993).
We cannot conclude that the record compels a finding that Sebki is entitled to withholding of removal. As the BIA noted, Sebki was never threatened, mistreated, or abused by the Algerian government, either on account of his ethnicity or his activities with the FFS. In addition, while Sebki was threatened at the hospital during the mosque incident, the FIS was later banned by the Algerian government, and Sebki was unharmed during the several months that he remained in Algeria prior to his departure. In general, unfulfilled threats qualify as persecution “only in the most extreme circumstances, such as where they are of a most immediate or menacing nature or if the perpetrators attempt to follow through on the threat.” Bejko v. Gonzales, 468 F.3d 482, 486 (7th Cir.2006). We reject Sebki’s argument that the threats he received compel the conclusion that he suffered persecution on account of his political activities.
The record also supports the determination that Sebki lacks an objective basis for his alleged fear of future persecution at the hands of the men whom he caused to be arrested in 1993, or by others who allegedly would be interested in harming Sebki due to his past activities. As the IJ noted, Sebki’s fear is based largely upon speculation offered by Sebki and his family members regarding the purported on-going desire of unidentified individuals to harm Sebki. As noted, Sebki was unharmed in Algeria after the threat he received in 1992, and he cites no specific evidence to establish that anyone in particular remains interested in harming him now. Further, as the BIA noted, Sebki’s father, a former FFS official, has remained in Algeria without incident. In short, the record does not compel the conclusion that Sebki more likely than not faces future persecution.2
Finally, we discern no basis to disturb the finding that Sebki fails to qualify for CAT protection. Sebki claims to fear torture in Algeria, citing evidence in the 2005 State Department Report that torture remains a significant human rights problem. He also cites the Algerian government’s amnesty program, which he claims has resulted in the release of many “Islamic militants” from prison. Petitioner’s Br. at 21. However, as respondent notes, the State Department Report also reflects that Algerian police “were generally effective at maintaining order throughout the country,” and that “[l]ow levels of corruption existed,” which undermines Sebki’s claim that the police would ignore threats of torture by Islamic militants. After a careful review of the record, we find substantial evidence to support the finding that Sebki failed to show it more likely than not that he would be tortured in Algeria. See Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir.2003).
*188III.
For the foregoing reasons, we will deny the petition for review.
. We lack jurisdiction to review the asylum claim because Sebki's application was denied as unLimely filed. See Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir.2003). While Sebki argues that we should review as a "question of law” the finding that he failed to show extraordinary circumstances to excuse his late filing, our case law is clear that we lack jurisdiction. See Jarbough v. Att'y Gen., 483 F.3d 184, 189 (3d Cir.2007) ("challenges to the BIA's extraordinary or changed circumstances determinations do not constitute 'questions of law' within the meaning of [8 U.S.C.] § 1252(a)(2)(D)").
We also lack jurisdiction to review the denial of voluntary departure. See 8 U.S.C. § 1229c(f); Obale v. Att’y Gen., 453 F.3d 151, 156 (3d Cir.2006). Sebki argues that the BIA "failed to properly review the record” and erred in finding that he failed to state a prima facie case for voluntary departure, thereby working a denial of "due process.” However, "[r]ecasting challenges to factual or discretionary determinations as due process or other constitutional claims is clearly insufficient to give this Court jurisdiction^]” Jarbough, 483 F.3d at 190. We thus reject Sebki's jurisdictional argument. We note, in any event, that we discern no error in the BIA’s decision given Sebki’s clear failure to establish his prima facie eligibility for voluntary departure.
. Sebki argues that the "country conditions documentation” shows a pattern or practice of persecution against Berber members of the FFS. Petitioner’s Br. at 19. Sebki failed, however, to present this pattern or practice argument to the BIA, and thus we lack jurisdiction to review it. See 8 U.S.C. § 1252(d)(1); Lin v. Att’y Gen., 543 F.3d 114, 120 (3d Cir.2008). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479682/ | OPINION
PER CURIAM.
Petitioner Sekou Oumarou Koita, a native and citizen of Mali, entered the United States in 2000 without being admitted or paroled. (He used a fraudulent passport.) On November 21, 2003, the Department of Homeland Security (“DHS”) issued a Notice to Appear (“NTA”), charging that he was removable pursuant to Immigration & Nationality Act (“INA”) § 212(a)(6)(A)©, 8 U.S.C. § 1182(a)(6)(A)©, as an alien present in the United States without being *209admitted or paroled. The allegations were conceded. On January 16, 2004, Koita, through counsel, filed an application for asylum under INA § 208(a), 8 U.S.C. § 1158(a), withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and protection under the Convention Against Torture, 8 C.F.R. §§ 1208.16(c), 1208.18, in which he claimed that he was persecuted in Mali on the basis of his political opinion. Koita later withdrew his asylum application because it was untimely-
During the merits hearing held on February 14, 2008, Koita testified that he was a Secretary of the Association of Pupils and Students of Mali (“AEEM”), a student organization at the Faculté des Sciences Juridiques et Economiques (part of the University of Bamako), a public university. Koita attended the university for about five months from November, 1999 to March, 2000, and he hoped to become a lawyer. As one of five Secretaries in AEEM, Koita served as a liaison between the students and organization leaders. During the relevant time period, January, 2000, through March, 2000, AEEM complained to the government that teachers were not being paid and students were not receiving stipends for books and supplies. The government was unresponsive and AEEM called for a strike. Shortly after the strike began in March, 2000, Koita fled to Niger and eventually came to the United States.
Koita testified that he learned from letters that five AEEM members were arrested during the strike. Since the strike, police have continued to search for him. He has monthly contact with his mother, who remains in Mali, and she has told him that, as recently as 2007, the police came to her home looking for him. As a result of the government’s continued pursuit' of him for his involvement in AEEM, an organization the government believes is trying to destroy the country, he fears that he will be put in jail and killed if he returns to Mali. On cross-examination, Koita admitted that he was never injured or arrested before or during the 2000 strike. He told the IJ that he did not timely file for asylum when he first came to the United States because he hoped that conditions in Mali would improve.
Koita presented numerous exhibits in support of his case, including, in pertinent part, the 2002, 2003, 2005 and 2006 U.S. State Department Country Reports on Human Rights Practices in Mali; the 1995 State Department’s Profile of Asylum Claims and Country Conditions in Mali; an item entitled “VERBAL LAWSUIT,” which appears to be committee minutes from a meeting of the student association from March 2, 2000, A.R. 283-84; a letter from Modibo Kane Fofana, General Secretary of AEEM, dated March 10, 2004, A.R. 275-76; a letter from the General Secretary of AEEM, dated February 7, 2005 and addressed to Koita, A.R. 279-80; a certificate of Koita’s attendance at the University, A.R. 287-88; the 2003 State Department’s Background Note on Mali, A.R. 344-53; and a letter addressed to Koita from the Secretary General of the Coordination Committee of AEEM, Cheick Mohamed Bady, dated July 20, 2007, indicating that there was still a search for certain unidentified students going on in Mali and advising Koita to stay in exile, A.R. 269-70.
The Immigration Judge denied all relief, concluding that Koita had not testified credibly, and, in the alternative, that he failed to meet his burden of proof for entitlement to withholding of removal under the statute or the CAT. Specifically, the IJ found that Koita did not suffer past persecution; therefore, he was not entitled to a presumption of future persecution. In addition, he failed to meet his burden of *210proof to establish that he faced a “clear probability” of future persecution on account of his political opinion. The IJ found that there was no evidence that would establish objectively that there was a risk to any exiled students who had previously participated in the 2000 strike. Koita’s exhibits, including the 2006 Country Report, while referencing difficulties between students and the government, did not support his contention concerning the plight of students who had been in exile since 2000.1
Furthermore, the IJ concluded that Koi-ta failed to prove that he would be singled out for persecution upon his return to Mali. Noting that a great deal of time had passed since the 2000 demonstration/strike, the IJ faulted Koita for failing to present independent evidence from his mother, for example, that would support his assertion that he specifically was the target of a continuing investigation, especially since he talked to his mother on a monthly basis. The IJ also concluded that Koita had not shown that it was more likely than not he would be tortured in Mali. The IJ ordered Koita removed to Mali. Koita appealed to the Board of Immigration Appeals.
In a decision dated June 23, 2009, the Board assumed without deciding that Koi-ta had testified credibly, but the Board agreed with the IJ that Koita simply had not met his burden of proof even assuming that he testified credibly. The Board agreed with the IJ, for the reasons given by the IJ, that Koita had not established past persecution or a clear probability of future persecution. As to the probability of future persecution in particular, the Board specifically held that, because Koita claimed that his mother told him that authorities continued to look for him in Mali, it was reasonable to expect him to provide an affidavit or letter from her, or other persuasive, first-hand evidence, to substantiate this claim. Without the letter from his mother, his claim that Mali authorities continued to look specifically for him over nine years after his departure was otherwise based only on “oral hearsay.” A.R. 3-4. The Board agreed with the IJ’s CAT conclusion as well. Koita timely petitioned for review of the Board’s decision.
We will deny the petition for review. We have jurisdiction to review the final order of removal under 8 U.S.C. § 1252(a)(1), (b)(1). Where the Board adopts and affirms the opinion of the IJ, we review the IJ’s decision to the extent of the adoption and affirmance. See Abdulai v. Ashcroft, 239 F.3d 542, 549 n. 2 (3d Cir.2001). The agency’s factual determinations are upheld if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. Immigration & Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Under this deferential standard, the petitioner must establish that the evidence does not just support a contrary conclusion but compels it. See id. at 481 n. 1, 112 S.Ct. 812; Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). The alien bears the burden of proof of establishing that he is a refugee and that he has suffered past persecution or has a well-founded fear of persecution. See id.; 8 G.F.R. § 1208.13(a).
Under INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A), withholding of removal is *211not discretionary: “The Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group or political opinion.” The test for relief is, however, more exacting than the asylum test because it requires the alien to show by a “clear probability” that his life or freedom would be threatened on account of a protected ground in the proposed country of removal. Immigration & Naturalization Serv. v. Stevic, 467 U.S. 407, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). See also Immigration & Naturalization Serv. v. Cardoza-Fonseca, 480 U.S. 421, 430, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (“would be threatened” standard has no subjective component). Persecution is defined as “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.” Kibinda v. Att’y Gen. of U.S., 477 F.3d 113, 119 (3d Cir.2007) (quoting Fatin v. Immigration & Naturalization Serv., 12 F.3d 1233, 1240 (3d Cir.1993)). It refers only to “severe” conduct and “does not encompass all treatment our society regards as unfair, unjust or even unlawful or unconstitutional.” Id.
Koita has waived the issue of whether he suffered past persecution. See Petitioner’s Brief, at 15 n. 4.2 The record in any event does not compel a finding of past persecution because Koita was never arrested or harmed on account of his affiliation with the student organization, AEEM. He has not identified a single event that caused him extreme harm or suffering sufficient to meet the standard of persecution. See Kibinda, 477 F.3d at 119; Fatin, 12 F.3d at 1240. Because he failed to establish past persecution, he was not entitled to the future persecution presumption. See 8 C.F.R. § 1208.16(b)(l)(i). With respect to the future persecution issue, the Board’s and IJ’s determination that Koita did not show a clear probability that the government of Mali would arrest or harm him now on the basis of his political activities in 2000 was supported by reasonable, substantial, and probative evidence on the record considered as a whole. Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. 812.
Koita failed to present any persuasive evidence that the Mali government currently seeks out members of the student group AEEM who played some role in the 2000 strike/demonstration. Because Koita’s problems in Mali are so remote in time, it was not sufficient for him to show merely that he was involved with AEEM ten years ago. The record establishes that Koita offered Country Reports, internet articles, and letters, some of which were addressed to him or referenced him, in support of his allegations. The IJ did not ignore Koita’s documentary evidence. In his brief, Koita specifically discusses four items. See Petitioner’s Brief, at 11-12. The letter from Cheick Mohamed Bady describes trouble at the Faculté des Sciences Juridiques et Economiques at the beginning of 2007 and states that leaders have been imprisoned. It warns exiled students to stay away but it does not persuasively state that government authorities have any interest in arresting students who participated in the 2000 strike/demonstration. A.R. 269.
The March 10, 2004 letter from Secretary General Modibo Kane Fofana states that demonstrators had been gassed and 40 students had been arrested. A.R. 275. This recounting of events appears, howev*212er, to refer to recent difficulties and not the 2000 strike/demonstration. Furthermore, the letter makes no persuasive reference to government authorities having any current interest in students who participated in the 2000 strike/demonstration. The February 7, 2005 letter from an unidentified AEEM General Secretary states that the crisis started up again in 2004-2005. The author “lost” three of his friends and even “actual leaders” were on a “black list.” A.R. 279. The author warns exiled students to stay away, but, again, the letter makes no persuasive reference to government authorities having any current interest in students who participated in the 2000 strike/demonstration. Last, the March 2, 2000 minutes (“Verbal Lawsuit”) from a student meeting held at the University states that' the situation is tense and certain “comrades” were in prison, but the letter states that Koita himself was known to have gotten out of Mali. A.R. 283. These minutes do not address current conditions in Mali.3
The IJ properly gave little weight to Koita’s documentary evidence and properly concluded that it was inadequate to support an assertion that the government of Mali is currently interested in detaining and harming AEEM members who participated in the 2000 strike/demonstration. In light of the insufficient evidence, the IJ and the Board properly focused on the only thing that specifically supported Koita’s purported fear of harm: that his mother has told him that authorities continued to look for him in Mali. But Koita did not provide an affidavit or letter from his mother, or other persuasive evidence to substantiate this assertion, and his failure to present any documentation from his mother was not reasonable because he testified that he talks to her on a monthly basis.
Koita contends in his brief that the Board erred in denying his claim based on the absence of corroborative evidence from his mother. See Petitioner’s Brief, at 9-10. We have held that corroboration may be required, even from credible applicants, see Abdulai, 239 F.3d at 554, where it is (1) reasonable to expect the applicant to produce corroboration, (2) the applicant fails to corroborate, and (3) the applicant fails to adequately explain that failure. Chukwu v. Att’y Gen. of U.S., 484 F.3d 185, 191-92 (3d Cir.2007) (citing Toure v. Att’y Gen. of U.S., 443 F.3d 310, 323 (3d Cir.2006)). The IJ and the Board in Koi-ta’s case fully complied with this test. The Board, for example, concluded that it was reasonable to expect corroboration because Koita’s assertions otherwise were based on hearsay and were not persuasive. Moreover, Koita claimed that his mother had personal knowledge of the Mali authorities’ continued interest in him nine years after the 2000 strike, and he testified that he talked to his mother as recently as January, 2008. When questioned, he had no reasonable explanation for his failure to request a letter from his mother corroborating his claims. A.R. 190-193.
Last, Koita contends that the Board acted improperly in not reaching the issue of his credibility. This argument lacks merit because the Board, indeed any court or agency, is not required to decide an issue that is not necessary to the result it reaches. See Immigration & Natural*213ization Serv. v. Bagamasbad, 429 U.S. 24, 25, 97 S.Ct. 200, 50 L.Ed.2d 190 (1976). In light of the substantial evidence that supported the Board’s determination that Koi-ta’s fear of future persecution was not clearly probable, the Board was not required to address his credibility.
For the foregoing reasons, we will deny the petition for review.
. The IJ specifically discussed the 2006 Country Report, which states, under the "Freedom of Assembly” section, that, on November 13, 2006, police fired tear gas into a demonstration of medical students who were seeking higher stipends from the government. Five students, including a woman, were arrested, charged with damaging property, and held for six days before being released. The students’ union claimed that the five were physically and sexually abused while in police custody. A.R. 227.
. Koita also waived review of his CAT claim. See id. In view of that waiver, we will not address the CAT issue.
. One other internet article specifically included in Koita’s appendix, entitled “Mali: Institutional Situation,” which appears to have been authored by a person or persons connected with Montesquieu University-Bordeaux, France, states that AEEM is "the most antiestablishment of the Malian union movements. Its actions laid down the foundations of the ‘revolution’ that overthrew the dictatorship [of General Moussa Traoré in 1991]. Recent action comprised the academic year 1998-99.” A.R. 297. This article does not even reference the 2000 strike/demonstration. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479686/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James D. Tinsley appeals the district court’s orders dismissing his 42 U.S.C. § 1983 (2006) complaint and denying his motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s orders. Tinsley v. Sheriff Rick Davis, No. 1:09-cv-00379-GCM, 2009 WL 3633883 (W-D.N.C. Oct. 30, 2009). We dispense with oral argument because the facts and legal contentions are adequately *255presented 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/8479687/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Robert Demos, Jr., appeals the district court’s order dismissing this action pursuant to 28 U.S.C. § 1915(g) (2006). We have reviewed the record and find no reversible error. Accordingly, we deny leave to proceed in forma pauperis and dismiss the appeal for the reasons stated by the district court. Demos v. Payseur, No. 5:10-cv-00011-FL (E.D.N.C. Jan. 19, 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.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479689/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joyce Branch-Williams appeals the district court’s order dismissing her complaint on the basis of res judicata and collateral estoppel. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Branch-Williams v. Spencer, No. 1:09-cv-02687-JFM, 2010 WL 231746 (D. Md. Jan. 13, 2010); Feb. 17, 2010. We also deny Branch-Williams’ pending motions to expedite, for procedural and substantive relief, for emergency financial relief, and for summary judgment. 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/8479692/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Forrest Ray Kyle appeals the district court’s orders accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C. § 2254 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Kyle v. McBride, No. 2:02-cv-00010-REM (N.D. W. Va. Oct. 29, 2002 Mar. 24, 2009). We deny Kyle’s motion to appoint counsel and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479694/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Paul Turner appeals the district court’s orders dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C. § 1915(e)(2)(B) (2006) and denying his motion for reconsideration. We have reviewed the record and find that this appeal is frivolous. Accordingly, we dismiss the appeal for the reasons stated by the district court. Turner v. CEO of the White House, No. 7:10-cv-00038-sgw (W.D.Va. Jan. 25 & 29, 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.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479696/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Steven Fowler appeals the district court’s order denying his Fed.R.Civ.P. 60 motion for relief from judgment. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Fowler, Nos. 1:99-cr-00010-WO-1; 1:05-cv-00162-RAE (M.D.N.C. Dec. 21, 2009 & Feb. 25, 2005). 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. The motion for a certificate of appealability is denied.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479698/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
L. Hall appeals the district court’s order granting the University’s motion to dismiss her claims, brought pursuant to the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 (2006); the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 701 to 7961 (2006); and Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq. (2006), as well as her breach of contract claim. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s order. See Hall v. St. Mary’s Seminary & Univ., 608 F.Supp.2d (D.Md.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/8479699/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael R. Ray appeals the district court’s order accepting in part the recommendation of the magistrate judge and granting summary judgment to the Defendants and dismissing the federal claims with prejudice and dismissing the state law claims without prejudice. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Ray v. Evercom Sys., Inc., No. 4:05-cv-2904-RBH, 2009 WL 2997607 (D.S.C. Sept. 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/8479702/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Stephen W. Stone appeals the district court’s order granting summary judgment in favor of the City of Seneca on all of Stone’s claims. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Stone v. City of Seneca, South Carolina, No. 8:07-cv-03401-HFF (D.S.C. May 14, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479704/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Deborah S. Linzer appeals the district court’s order granting summary judgment in favor of Sebelius on Linzer’s Rehabilitation Act complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Linzer v. Sebelius, *358No. 8:07-cv-00597-AW, 2009 WL 2778269 (D.Md. Aug. 28, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479707/ | *370Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeffrey Allen Larson appeals the district court’s order accepting the recommendation of the magistrate judge and dismissing his complaint pursuant to 28 U.S.C. § 1915(e)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Larson v. St. Paul Dept. of Labor in Minnesota, No. 5:08-cv-00437-FL, 2008 WL 5338208 (E.D.N.C. Dec. 19, 2008). We deny Larson’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/8479695/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Steven Fowler appeals the district court’s order denying his Fed.R.Civ.P. 60 motion for relief from judgment. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Fowler, Nos. 1:99-cr-00010-WO-1; 1:05-cv-00162-RAE (M.D.N.C. Dec. 21, 2009 & Feb. 25, 2005). 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. The motion for a certificate of appealability is denied.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479697/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
L. Hall appeals the district court’s order granting the University’s motion to dismiss her claims, brought pursuant to the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 (2006); the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 701 to 7961 (2006); and Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq. (2006), as well as her breach of contract claim. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s order. See Hall v. St. Mary’s Seminary & Univ., 608 F.Supp.2d (D.Md.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/8479700/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael R. Ray appeals the district court’s order accepting in part the recommendation of the magistrate judge and granting summary judgment to the Defendants and dismissing the federal claims with prejudice and dismissing the state law claims without prejudice. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Ray v. Evercom Sys., Inc., No. 4:05-cv-2904-RBH, 2009 WL 2997607 (D.S.C. Sept. 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/8479701/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Stephen W. Stone appeals the district court’s order granting summary judgment in favor of the City of Seneca on all of Stone’s claims. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Stone v. City of Seneca, South Carolina, No. 8:07-cv-03401-HFF (D.S.C. May 14, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479703/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Deborah S. Linzer appeals the district court’s order granting summary judgment in favor of Sebelius on Linzer’s Rehabilitation Act complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Linzer v. Sebelius, *358No. 8:07-cv-00597-AW, 2009 WL 2778269 (D.Md. Aug. 28, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479706/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Ferdinand Anneheim appeals the district court’s order denying his 18 U.S.C. § 3582(c) (2006) motion. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Anneheim, No. 5:99-cr-00020-RLV-2 (W.D.N.C. Mar. 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/8479708/ | *370Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeffrey Allen Larson appeals the district court’s order accepting the recommendation of the magistrate judge and dismissing his complaint pursuant to 28 U.S.C. § 1915(e)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Larson v. St. Paul Dept. of Labor in Minnesota, No. 5:08-cv-00437-FL, 2008 WL 5338208 (E.D.N.C. Dec. 19, 2008). We deny Larson’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/8479909/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Howard B. Odom appeals the district court’s order granting summary judgment to Defendant International Paper Company on Odom’s action under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981 (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Odom v. Int’l Paper Co., 652 F.Supp.2d 671 (E.D.Va.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/8479709/ | *372Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Walter Duane White appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his complaint filed pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). We have reviewed the record and find no reversible error. Accordingly, we deny White’s motion to appoint counsel and add a Defendant and affirm for the reasons stated by the district court. White v. Francis, No. 2:07-cv-00015-REM-JES, 2009 WL 302310 (N.D.W.Va. 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/8479711/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Julian Edward Rochester appeals the district court’s order dismissing his petition for a writ of mandamus. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Rochester v. South Carolina, No. 2:09-cv-03148-HMH-SC (D.S.C. Dec. 8, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the *375decisional process. The petition for a writ of mandamus is denied.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479713/ | PER CURIAM: *
AFFIRMED. See 5th Cir. R. 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/8479716/ | GARWOOD, Circuit Judge, specially
concurring.
I concur in the result for the same reasons as stated in my special concurrence in No. 09-40438, USA v. Miller. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479722/ | PER CURIAM: *
The attorney appointed to represent Aida Quirino Rios 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). Rios has filed a response. Our independent review of the record, counsel’s brief, and Rios’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 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.