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https://www.courtlistener.com/api/rest/v3/opinions/8479723/ | PER CURIAM: *
Andres Banda-Collazo appeals his guilty plea conviction and sentence for being found unlawfully in the United States after having been removed following a prior aggravated felony conviction in violation of 8 U.S.C. § 1326(a) and (b)(2). Banda-Colla-zo contends that his guilty plea was not knowing and voluntary because trial counsel was ineffective in failing to explain his speedy trial rights and move for the dismissal of the charges in the district court. He also contends that the district court did not specifically explain at the rearraignment hearing that by pleading guilty, he would be waiving his right to challenge speedy trial violations under the Sixth Amendment, as well as the Speedy Trial Act. Because Banda-Collazo did not raise these claims in the district court, plain error review applies. See United States v. Vonn, 535 U.S. 55, 58-59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002).
The record shows that Banda-Collazo’s guilty plea was knowing and voluntary. In addition to advising him of the various trial rights he would be waiving by pleading guilty, the district court specifically explained that he was giving up his right to claim that his right to a speedy trial was violated. Banda-Collazo stated that he understood. The district court *427ascertained that Banda-Collazo was competent to plead guilty, that he was not under the influence of any substances, that he understood the nature of the charges and the maximum penalty, that his plea was not the result of threats or force, and that there was a factual basis for the plea. Banda-Collazo confirmed that he had sufficient time to discuss his case with counsel and that he was pleading guilty freely and voluntarily. His statements at the rear-raignment hearing carry a strong presumption of verity. See Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). Therefore, Banda-Collazo has not shown error, plain or otherwise.
Banda-Collazo waived his Sixth Amendment speedy trial claim when he entered a voluntary and unconditional guilty plea. See United States v. Bell, 966 F.2d 914, 915 (5th Cir.1992). Further, his Speedy Trial Act claim is not subject to appellate review because he did not raise it in the district court. See 18 U.S.C. § 3162(a)(2); United States v. Westbrook, 119 F.3d 1176, 1186 (5th Cir.1997).
Banda-Collazo contends that the lack of a signature and date on his indictment violated his Fifth Amendment right to due process and his Sixth Amendment right to a jury trial. This challenge to his indictment was also waived by his voluntary and unconditional guilty plea. See United States v. Daughenbaugh, 549 F.3d 1010, 1012-13 (5th Cir.2008).
Banda-Collazo contends that the indictment was defective because it failed to identify his prior aggravated felony conviction. He argues that his prior conviction was an element of the offense and, thus, should have been specifically identified in the indictment. Banda-Collazo’s argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). See United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir.2007).
Banda-Collazo’s related argument that the 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(l)(A)(i) was unconstitutional because it was based on the fact of a prior conviction that was not alleged in the indictment and proved to a jury beyond a reasonable doubt, is likewise foreclosed. See United States v. Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Finally, the record is not sufficiently developed to permit direct review of Ban-da-Collazo’s claim that trial counsel was ineffective in failing to explain his speedy trial rights and move for the dismissal of the charges in the district court. See United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir.2006). Therefore, we decline to consider this claim, without prejudice to Banda-Collazo’s right to raise it in a 28 U.S.C. § 2255 motion. See id.
Although several of Banda-Collazo’s claims were waived and foreclosed by circuit precedent, counsel failed to identify and address the controlling precedent. Counsel is therefore reminded of his duty to research the law and facts and to address controlling precedent. See United States v. Fields, 565 F.3d 290, 294 (5th Cir.), cert. denied, —— U.S.-, 130 S.Ct. 298, 175 L.Ed.2d 199 (2009).
Accordingly, the district court’s judgment is 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/8479724/ | PER CURIAM: *
The Federal Public Defender appointed to represent Roberto Carlos Hernandez 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). Hernandez has not filed a response. Our independent review of the record and counsel’s brief discloses *459no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th CiR. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479728/ | ORDER
Claiming to be the victim of a conspiracy stretching across two states and two decades, plaintiff Ronald DeWayne Smith filed in the Northern District of Illinois a petition for a writ of habeas corpus and this related civil lawsuit seeking damages and injunctive relief from two dozen defendants. Among those defendants were the appellees here, a county board of education in West Virginia and five individual West Virginia residents. The district court dismissed the claims against these West Virginia defendants for lack of personal jurisdiction, then granted their Rule 54(b) motion for entry of a partial final judgment in their favor. Smith has appealed both rulings. We affirm.
Smith’s troubles began in the early 1990s when he attempted to return from a hiatus in his job as a teacher with the Jefferson County, West Virginia, schools. Smith had left Jefferson County in 1983 to serve in the military; in his absence, a man named David Didden took his place. According to Smith’s allegations, his attempt to return to his old job set off an elaborate conspiracy against him. This alleged conspiracy involved Didden himself; Didden’s parents, Gregory and Margaret; Braun Hamstead, lawyer for the Diddens and for the education board; and Michael Thompson, the Jefferson County prosecutor. According to Smith, these five people conspired to file false administrative and criminal complaints alleging that Smith had sexually abused David Didden in the mid-1970s. Smith alleges that these false complaints had two purposes: first, to keep Smith out of his old job, and second, to fabricate a history of repressed sexual abuse for David so that he could claim psychological problems as an excuse for not deploying to Iraq in 1992.
Smith pled nolo contendere in 1995 to a criminal charge of sodomy. (He alleges here that Prosecutor Thompson coerced him to plead guilty, but the conviction has not been set aside.) Smith was sentenced to one to ten years of suspended incarceration and three years of probation. His probation was revoked in 1996 (again, Smith says, thanks to the conspirators). Smith was then incarcerated in West Virginia for about four years until his release on October 12, 2001. Just before leaving prison, he filed a state petition for habeas corpus and later obtained a deal in which the state agreed to revise his criminal record to read “crimes against nature” rather than “sodomy” and to limit to ten years the period in which Smith had to remain on West Virginia’s sex offender registry.
The scene then shifted to Illinois, where Smith moved in 2003 to enroll as a student at Chicago’s Moody Bible Institute. He remained there in relative peace until November 1, 2005, when a Berkeley County, West Virginia, assistant prosecutor named Josh Henline allegedly made a phone call to the Illinois Attorney General’s office.1 According to an unrebutted police report filed by another defendant, Berkeley County had sent a letter to the address that Smith had given to the West Virginia sex offender registry, and the letter had been returned as undeliverable. This re*585turn set off an investigation in Berkeley County, culminating in the issuance of a bench warrant for Smith’s arrest in Berkeley County and Henline’s call to Illinois.
Investigators with the Illinois Attorney General’s office followed up on Henline’s inquiry and arrested Smith at his school on November 2, 2005. At that point, West Virginia officials apparently dropped their investigation and ended their attempt to have Smith sent back to West Virginia. But despite this odd turn of events, Smith was not out of the woods: he was later arrested and charged with failing to register as a sex offender in Illinois, a charge on which he awaits trial in an Illinois state court. Smith has sued various Illinois defendants for alleged constitutional violations in his arrest and prosecution. We do not address those issues here; the only issues before us in this appeal concern personal jurisdiction in Illinois over the West Virginia defendants.
In a federal question ease such as this one, where there is no provision for nationwide service of process, a federal court has personal jurisdiction to the extent permitted by the law of the state in which it sits. Janmark, Inc. v. Reidy, 132 F.3d 1200, 1201 (7th Cir.1997). Illinois law, in turn, allows personal jurisdiction over a defendant to the same extent permitted by the United States Constitution. See 735 Ill. Comp. Stat. 5/2-209(e). That means Smith must at least show that each defendant has “purposefully established ‘minimum contacts’ in the forum State” such that it is “not unreasonable to require him to submit to the burdens of litigation in that forum.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-76, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); accord, Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958) (requiring “some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State”).
Our abbreviated recitation of Smith’s allegations makes apparent that the only wrongdoing he ascribes to the six West Virginia defendants took place entirely in West Virginia. Smith argues nonetheless that Illinois can exercise jurisdiction because the conduct he alleges in West Virginia had an “effect” in Illinois. This argument mistakes the nature of personal jurisdiction, which is concerned with the actions of individual defendants and not with the effects of conduct generally. For Illinois to exercise personal jurisdiction over any one of these nonresident defendants, Smith must allege that the particular person reached out to Illinois in a way that makes him reasonably liable to be sued there. Burger King, 471 U.S. at 475-76, 105 S.Ct. 2174. This Smith has not done. The only West Virginian who Smith alleges had any contact at all with Illinois is the Berkeley County deputy prosecutor, Josh Henline, and he is not a defendant here.2
Jurisdiction is nevertheless available, Smith argues, by Illinois’s recognition of the “conspiracy theory of personal jurisdiction.” The idea behind this theory is that personal jurisdiction is proper over an out-of-state defendant in a forum where one of his co-conspirators has acted as the defendant’s agent in furtherance of the conspiracy. See, e.g., Davis v. A & J Electronics, 792 F.2d 74, 75-76 (7th Cir.1986), citing Textor v. Board of Regents of Northern Illinois University, 711 F.2d 1387, 1392-93 (7th Cir.1983). The first problem with this argument is that the theory may not be valid in Illinois. See Ploense v. Electrolux Home Products, Inc., 377 Ill.App.3d 1091, 317 Ill.Dec. 773, *586882 N.E.2d 653, 666 (2007) (stating that an Illinois Supreme Court case “effectively seuttl[ed]” the theory); Knaus v. Guidry, 389 Ill.App.3d 804, 329 Ill.Dec. 446, 906 N.E.2d 644, 659-61 (2009) (noting the “articulated hesitancy of our supreme court ... to adopt the conspiracy theory of jurisdiction in Illinois”). Even if it were viable,the theory would not permit a plaintiff to draw a defendant into court in Illinois simply by alleging a conspiracy that includes some Illinois defendants and some out-of-state defendants, while making no effort to connect the two. That stretch would take well beyond the bounds of Illinois law and the bounds of federal due process a theory that is already marginal at best. See Ploense, 317 Ill.Dec. 773, 882 N.E.2d at 667-68 (questioning whether conspiracy theory of personal jurisdiction meets federal minimum contacts requirement); Knaus, 329 Ill.Dec. 446, 906 N.E.2d at 662-63 (same).
The only connection that Smith’s allegations make between West Virginia and Illinois is the phone call made by Henline. And the only connection his allegations make between Henline and the West Virginia defendants is that all of them live among the rolling hills of eastern West Virginia. That attenuated link is not enough to establish that these defendants purposefully availed themselves of the benefit of Illinois’s laws or should have expected to be called into Illinois’s courts.
Once the district court had properly dismissed the West Virginia defendants for lack of personal jurisdiction, it was entirely proper to grant their Rule 54(b) motion for partial final judgment as well. Requisite to any Rule 54(b) judgment is a final resolution of a separate claim or of all claims against a particular party or parties. See, e.g., United States v. Ettrick Wood Products, Inc., 916 F.2d 1211, 1217 (7th Cir.1990). The district court’s dismissal of the claims against the West Virginia defendants pursuant to Rule 12(b)(2) constitutes such a final resolution.
Once that preliminary requirement is satisfied, a district court may grant final judgment to fewer than all parties only if it “expressly determines that there is no just reason for delay.” Fed.R.Civ.P. 54(b). The district court made its express determination with respect to these defendants both in court on June 15, 2009 and in a written order the next day. The court explained that it was granting the motion because “the West Virginia defendants are completely separable from the remainder of the case” once they were dismissed for lack of personal jurisdiction. Smith does not say why we should find this ruling to be an abuse of discretion, see Marseilles Hydro Power, LLC v. Marseilles Land & Water Co., 518 F.3d 459, 464 (7th Cir.2008) (applying abuse of discretion standard to Rule 54(b) determination), nor does he offer any other reason to delay releasing these defendants from the snare of this litigation. In fact, the district court’s ruling was in perfect harmony with its finding that Illinois lacks personal jurisdiction over these defendants, a finding premised on the injustice of dragging them to Illinois to defend a West Virginia lawsuit in the first place. This situation — one group of defendants who are entitled to dismissal on grounds entirely separate from the issues relating to the remaining defendants — is the paradigm of an easy case for entry of a partial final judgment under Rule 54(b).
The district court’s partial final judgment in favor of defendants David Didden, Gregory Didden, Margaret Didden, Braun Hamstead, Michael Thompson, and the Jefferson County Board of Education is AFFIRMED.
. Berkeley County is located just to the west of Jefferson County in the panhandle of West Virginia, about sixty miles northwest of Washington, D.C. Neither Henline nor any Berkeley County entity is a party to this action.
. We take the facts as alleged in Smith’s second amended complaint, not in his brief before this court, where he contends without support from the record that “the telephone call was made by [the] State of West Virginia and Thompson.” Appellant's Br. 21. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479710/ | *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/8479712/ | 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/8479714/ | 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/8479719/ | PER CURIAM: *
The plaintiff-appellant, The College Network (TCN), sued the defendant-appellee, Moore Educational Publishers, Inc. (MEP), under § 43 of the Lanham Act, 15 U.S.C. § 1125. The intervenor plaintiff-appellee, Debra K. Moore, intervened in the suit and, along with MEP, brought claims against TCN for defamation and tortious interference with prospective business relations. The case was submitted to a jury, which denied relief to TCN under the Lanham Act but granted relief to MEP and Moore on their defamation and tortious interference claims. TCN moved for judgment as a matter of law, arguing that the evidence established a Lanham Act violation and that there was insufficient evidence to support the defamation and tortious interference awards. The district court denied the motion; this appeal followed. For the following reasons, we vacate the tortious interference award but otherwise affirm.
*405I. Background
TCN and MEP (which does business as “iStudySmart”) are competitors in the business of publishing and selling study guides to nursing students. Indianapolis-based TCN was founded in 1995 and conducts its business nationwide in seven geographic regions, with about 200 salespeople, or “program advisors.” Moore founded Nashville-based MEP in 1986 and has been its president and sole shareholder since then. MEP also sells its study guides nationwide but is a much smaller operation, with only nine employees. Both companies market their products on the internet.
A. The Defamatory Statements
In July 2006, TCN held a regional sales meeting at a hotel in Houston, Texas. Approximately 30 to 40 salespeople from TCN’s South Central Region, TCN’s largest sales region, attended. The purpose of the meeting, according to one witness, was to train TCN’s regional sales staff on how to close sales by addressing potential customers’ objections to buying study guides from TCN. According to several witnesses, TCN’s regional director told the sales staff that they did not need to worry about iStudySmart because the company was “out of business” or was “going out of business.” The regional director also instructed the staff to repeat these statements to potential customers. The parties refer to these statements as the “Business Statements.” MEP and Moore did not learn of the Business Statements until an iStudySmart sales meeting in May 2007.
In October 2006, Shara Wright, a salesperson for TCN, resigned her employment with TCN. Wright later testified that she did so because she felt TCN’s business practices were unethical. Wright then took a job at MEP.
Several of Wright’s extended family members also worked at TCN. After Wright resigned, TCN terminated all of her family members except for Glenn Ca-son, who is Wright’s cousin and TCN’s vice-president and national sales manager, and who conducted the terminations. One of the terminated family members, Joel Cromer, later testified that Cason explained to him that termination was necessary because Wright, Cromer’s sister-in-law, had gone to work for Debra Moore at MEP, and Moore would steal secrets from TCN. Cromer wrote down his recollection of the conversation shortly after it occurred. His notes state: “Glenn said Debra Moore was a thief and has stolen things from The College Network. He also called her dishonest.” The parties refer to the statements by Cason as the “Moore Statements.” MEP and Moore did not learn of the Moore Statements until the day before Cromer’s deposition in connection with this case in December 2007.
B. The District Court Proceedings
TCN sued MEP in the Western District of Texas on July 19, 2007, alleging trademark infringement under § 43 of the Lan-ham Act, 15 U.S.C. § 1125.1 TCN contended that MEP had purchased the phrase “The College Network” from Google and Yahoo as a search-engine keyword to summon MEP’s sponsored-link advertising. TCN contended that this was a use of TCN’s trademark in commerce that was likely to cause confusion, in violation of the Lanham Act. At trial, MEP stipulated that it had, in fact, purchased “The College Network” from Google and Yahoo as a *406search-engine keyword but disputed that this violated the Lanham Act. MEP also asserted that it began this practice only after learning “that TCN was doing the same sponsored link advertising using MEP’s name.” MEP did not, however, urge an unclean hands affirmative defense and does not urge one now.
Moore intervened in the suit on May 20, 2008, bringing claims against TCN for defamation resulting from the Business Statements and the Moore Statements. MEP counterclaimed against TCN the same day, alleging defamation and tortious interference resulting from the Business Statements.2
At trial, TCN presented the testimony of an expert witness, Otto Wheeler, who opined that MEP’s use of “The College Network” as an internet search term created a likelihood of confusion under the Lanham Act. Wheeler also opined on purported shortcomings in MEP’s and Moore’s defamation damages model. MEP and Moore presented witnesses and evidence in support of their defamation and tortious interference claims and the resulting damages, including the testimony of an expert witness, David Fuller. The evidence as to damages resulting from the Business Statements included that TCN’s publication of the Business Statements in July 2006 correlated with a significant drop in MEP’s sales in the third quarter of that year. The evidence as to damages resulting from the Moore Statements included that Moore’s reputation suffered.
Both parties moved for judgment as a matter of law at the close of evidence on the counterclaims and before the case was submitted to the jury. The district court denied the motions and sent the case to the jury.
C. The J ury V erdict
The jury found that “The College Network” was a valid trademark but that MEP did not infringe it by using it as a search-engine keyword to summon MEP’s sponsored-link advertising.
The jury concluded that the Business Statements and the Moore Statements were defamatory and were discoverable as of May 2007 and December 2007, respectively. The jury awarded MEP $49,886 for reputation damages; $86,426 for lost profits; $1,600 for tortious interference with prospective contract; and $500,000 in exemplary damages. The jury awarded Moore $150,000 for reputation damages and $250,000 in exemplary damages.
After the verdict was rendered, TCN renewed its motion for judgment as a matter of law and requested, in the alternative, a new trial. The district court denied this motion but did cap MEP’s and Moore’s exemplary damages in accordance with Texas law. See Tex. Civ. Prac. & Rem.Code Ann. § 41.008(b) (Vernon 2009). The court reduced MEP’s exemplary damages to $225,438 and Moore’s to $200,000 and entered final judgment. This appeal followed.
II. Standard of Review
This court reviews the district court’s denial of a motion for judgment as a matter of law de novo. Evans v. Ford Motor Co., 484 F.3d 329, 334 (5th Cir.2007); Hiltgen v. Sumrall, 47 F.3d 695, 699 (5th Cir.1995) (“On review of the district court’s denial of such a motion, the appellate court uses the same standard to review the verdict that the district court used in first passing on the motion.”).
Where the case is tried before a jury, a motion for judgment as a matter of law *407constitutes a challenge to the legal sufficiency of the evidence supporting the jury’s verdict. Harrington v. Harris, 118 F.3d 359, 367 (5th Cir.1997). We will uphold the jury’s verdict unless “a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.” Fed.R.CivP. 50(a)(1). Motions for judgment as a matter of law should be granted only if:
the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict.... On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied ....
Brown v. Bryan County, 219 F.3d 450, 456 (5th Cir.2000) (quoting Boeing v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc)). Further,
[a] jury may draw reasonable inferences from the evidence, and those inferences may constitute sufficient proof to support a verdict. On appeal we are bound to view the evidence and all reasonable inferences in the light most favorable to the jury’s determination. Even though we might have reached a different conclusion if we had been the trier of fact, we are not free to reweigh the evidence or to re-evaluate credibility of witnesses. We must not substitute for the jury’s reasonable factual inferences other inferences that we may regard as more reasonable.
Hiltgen, 47 F.3d at 700 (quoting Rideau v. Parkem Indus. Servs., Inc., 917 F.2d 892, 897 (5th Cir.1990)).
Our standard of review for a district court’s denial of a motion for new trial is more deferential than a review of a denial for judgment as a matter of law. Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1049 (5th Cir.1998). A district court’s denial of a motion for new trial is reviewed for abuse of discretion. Id. The “denial [of a motion for new trial] will be affirmed unless there is a clear showing of an absolute absence of evidence to support the jury’s verdict.” Whitehead v. Food Max of Miss., Inc., 163 F.3d 265, 269 (5th Cir.1998) ((internal quotation marks omitted)).
III. Analysis
A. The Judgment in Favor of Moore
The appellees contended at trial that Moore was defamed by, and that she sustained damages resulting from, the Business Statements and the Moore Statements. The jury agreed, awarding $150,000 in damages for reputation harm and $250,000 in exemplary damages (later reduced to $200,000). TCN argues that Moore’s claims as to both statements are time-barred and that there was insufficient evidence to support the jury’s damage awards. Each of these assertions is examined in turn.
1. Statute of Limitations and the Discovery Rule
TCN contends that Moore’s defamation claims are time-barred. The Business Statements were published in July 2006, at TCN’s regional sales meeting, and the Moore Statements were published in October 2006, when Glenn Cason terminated Joel Cromer. Moore did not file her defamation counterclaims until April 2008. TCN therefore argues that by the time Moore filed suit, the one-year statute of limitations applicable to defamation claims under Texas state law, Tex. Civ. Prac. & Rem.Code Ann. § 16.002(a), had lapsed. MEP and Moore counter that Moore’s claims were saved by Texas’s “discovery rule,” under which the statute of limita*408tions is tolled when “the nature of the injury incurred is inherently undiscovera-ble and the evidence of injury is objectively verifiable.” See S.V. v. R.V., 933 S.W.2d 1, 6 (Tex.1996).
The jury found that, “in the exercise of reasonable care and diligence,” Moore should have discovered the Business Statements in May 2007 and the Moore Statements in December 2007, and not earlier. The district court denied TCN’s post-trial motion for judgment as a matter of law as to the statute of limitations issue, concluding that “[vjiewing the trial record in the light most favorable to MEP and Moore ... the jury had a legally sufficient eviden-tiary basis for their findings and ... the defamation claims are not barred by limitations.” The parties agree that Moore did not in fact discover the Business Statements until May 2007, when Wright told her about them in a sales meeting, and did not discover the Moore Statements until December 2007, on the eve of Joel Cromer’s deposition.
Under Texas law, the discovery rule applies to toll the statute of limitations where 1) “the nature of the injury incurred is inherently undiscoverable,” and 2) “the evidence of injury is objectively verifiable.” S.V., 933 S.W.2d at 6 (quoting Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex.1996) (internal quotation marks omitted)). TCN contends that Moore cannot satisfy either prong of the test.
a. Inherently Undiscoverable
TCN first contends that Moore cannot establish that either the Business Statements or the Moore Statements were inherently undiscoverable. In S.V., the Texas Supreme Court explained that to be “inherently undiscoverable”:
an injury need not be absolutely impossible to discover, else suit would never be filed and the question whether to apply the discovery rule would never arise. Nor does “inherently undiscoverable” mean that a particular plaintiff did not discover his injury within the prescribed period of limitations; discovery of a particular injury is dependent not solely on the nature of the injury but on the circumstances in which it occurred and plaintiffs diligence as well. An injury is inherently undiscoverable if it is by nature unlikely to be discovered within the prescribed limitations period despite due diligence.
Id. at 7 (citing Computer Assocs., 918 S.W.2d at 456). The parties’ arguments as to whether the Business Statements and the Moore Statements were “inherently undiscoverable” are discussed below.
i. The Business Statements
TCN contends, for the first time on appeal, that the Business Statements were not “inherently undiscoverable” because Moore actually discovered them in May 2007, within the one-year statute of limitations from their publication in July 2006. Because TCN did not raise this argument in the district court, it is waived as a basis for appeal. See Flowers v. S. Regional Physician Servs. Inc., 247 F.3d 229, 238 (5th Cir.2001) (“If a party fails to move for judgment as a matter of law under ... [Rule] 50(a) on an issue at the conclusion of all of the evidence, that party waives ... its right to challenge the sufficiency of the evidence on that issue on appeal.”); Johnson v. Sawyer, 120 F.3d 1307, 1331 (5th Cir.1997).
ii. The Moore Statements
TCN contends that the Moore Statements were not “inherently undiscovera-ble” before December 2007 (when Moore actually discovered them) because, in the exercise of due diligence, she should have discovered the statements when she inter*409viewed Joel Cromer for a job shortly after he was terminated from TCN in October 2006. TCN raised this contention in its motion for judgment as a matter of law, but the district court summarily rejected it. TCN argues on appeal that:
[h]ad Moore exercised reasonable diligence in her job interview with Cromer ... [she] would have asked [him] why he was terminated by TCN just days earlier. Any reasonable employer would have done so. And as Glenn Cason explained to Cromer, the reason was that ... Wright had gone to work for Moore, who was a thief who had stolen from TCN and was dishonest.
Moore counters that “TCN offered no evidence of circumstances that would have put Moore on notice to ask Cromer if he had heard defamatory statements made about her while employed by TCN,” and points out that “a person interviewing for a job would not start disparaging former employers due to the negative impression it would create at a job interview.”
From these circumstances, the jury could reasonably have inferred that the Business Statements were inherently un-discoverable to the appellees until December 2007. Such inferences “constitute sufficient proof to support a verdict.” Hiltgen, 47 F.3d at 700.
b. Objectively Verifiable
TCN also asserts, for the first time on appeal,3 that the discovery rule does not apply to the Moore Statements and Business Statements because these statements do not satisfy the “objectively verifiable” prong of the test. Because TCN never raised this issue before the district court, it is waived on appeal. Flowers, 247 F.3d at 238; Johnson, 120 F.3d at 1331.
2. Reputation Damages
The jury found, in response to yes or no questions on the verdict form, that the Business Statements and the Moore Statements were both “defamatory in nature” as to Moore and awarded $150,000 in damages for “[l]oss of reputation, standing, or goodwill.” The jury also found, in response to a subsequent question, that the Moore Statements, but not the Business Statements, were “defamatory per se ” as to Moore. The jury did not award any additional damages for this finding.4
TCN argued to the district court that there was insufficient evidence in the record to support the conclusion that Moore sustained reputation damage through either the Business Statements or the Moore Statements. The district court denied TCN’s motion for judgment as a matter of law on this basis, concluding that “sufficient evidence supports the jury’s award of $150,000 to Moore as damages to her reputation.”
TCN now argues, for the first time on appeal, that the “necessary conclusion” to be drawn from the jury’s damages award *410to Moore is that the entire $150,000 awarded was “based on the Business Statements [alone].” TCN reasons that because the jury found that only the Moore Statements were defamatory per se, but awarded no damages for that claim, the jury must have concluded that the Moore Statements did not cause damage of any kind to Moore. TCN argues that the $150,000 award for statements “defamatory by nature” must therefore relate only to damages from the Business Statements, not the Moore Statements. TCN goes on to argue that there was insufficient evidence to support the proposition that Moore was personally harmed by the Business Statements. Because TCN failed to raise these arguments in the district court, they are waived on appeal. Flowers, 247 F.3d at 238; Johnson, 120 F.3d at 1331.
B. The Judgment in Favor of MEP
The appellees contended at trial that MEP was defamed by, and sustained damages resulting from, the Business Statements and that the Business Statements tortiously interfered with prospective sales. The jury agreed, awarding $49,386 for reputation damage, $86,426 for lost profits, $1,600 for tortious interference, and $500,000 in exemplary damages (later reduced to $225,438). TCN argues that MEP’s claim was time-barred and that there was insufficient evidence to support the jury’s damage award. Each contention is discussed below.
1. The Statute of Limitations and the Discovery Rule
TCN argues that MEP’s defamation claims as to the Business Statements are time-barred “for the same reasons [as] Moore’s claims for defamation based on the Business Statements.” We have already concluded that Moore’s claims as to the Business Statements are not time-barred. TCN’s argument as to MEP fails for the same reasons.
2. Reputation Damages
The jury concluded that the Business Statements were “defamatory in nature” as to MEP and awarded MEP $49,386 in reputation damages. TCN argues that we should vacate the damages award because the evidence at trial did not specifically connect the Business Statements with damages to MEP’s reputation. TCN raised an objection to MEP’s reputation damages in its motion for judgment as a matter of law, but only summarily, stating simply that “TCN is entitled to judgment as a matter of law on MEP’s claim for defamation because ... there was no evidence of special damages ... [to] MEP’s reputation.” Because TCN did not raise the particular argument that it now offers as a basis for relief in the district court, it arguably is waived.
Even if TCN’s argument is not waived, however, it lacks merit. TCN cites one case in support of its argument: Exxon Mobil Corp. v. Hines, 252 S.W.3d 496, 505 (Tex.App.-Houston [14th Dist.] 2008). In Exxon, two former employees sued for defamation after their employment was terminated for allegedly defrauding the company’s matching gift program. Id. at 499. The employees contended that they were defamed by the fact of and the circumstances surrounding their terminations, which included, among other pieces of evidence, two presentations made by the defendant’s internal auditors to the company management that detailed the alleged fraud. Id. at 500. The jury charge indicated that the jury should award defamation damages for reputation harm only if they concluded that the plaintiffs were defamed by and sustained harm from the presentations, as opposed to other circumstances surrounding the termination. Id. at 505. The jury awarded damages under this charge. Id.
*411The Texas court of appeals vacated the award, observing that “appellees cite to no specific testimony wherein a witness stated that either of the appellees was damaged (noneconomically) specifically by statements contained in the two presentations.” Id. at 505. “To the contrary, the specific testimony related to” numerous other alleged instances of defamation. Id. The court concluded that the plaintiffs had failed to demonstrate “a causal connection [between their damages and] the presentations in question,” adding that “it is not reasonable to infer that the general testimony ... (as appellees suggest here) relates to a different, unmentioned specific cause.” Id. at 506. “[T]he general testimony d[id] not constitute the type of detailed evidence required to support awards of ... reputation damages in the defamation context.” Id. at 507.
Here, in contrast to Exxon, the appel-lees did present specific evidence that linked the Business Statements to harm to MEP’s reputation. Moore testified at trial that deposition testimony had revealed instances of customers who had declined to purchase from MEP because of the perception that the company was going out of business. Four witnesses, all sales staff in attendance at that meeting, testified that they had in fact relayed the Business Statements to MEP customers. Shara Wright testified that she relayed the Business Statements to customers on “hundreds” of occasions. The evidence at trial also showed that the timing of the Business Statements correlated with a downward trend in sales at a time when several factors — including an improved sales staff, an important endorsement from an online college, and an economy in which school enrollment was on the rise — should have prompted an increase in sales. TCN argues that more specific evidence should be required, but that is not the relevant standard. Because there was evidence at trial that specifically connected the Business Statements — as opposed to other bad acts or statements by TCN — to harm to MEP’s reputation, there is no basis to vacate the jury’s award. Brown v. Bryan County, 219 F.3d at 456.
3. Lost Profits
TCN also argues that the appellees’ damages model was so flawed that we should vacate the jury’s award of lost profits.
Fuller, the appellees’ damages expert, testified at trial that TCN’s publication of the Business Statements in July 2006 correlated with a significant drop in MEP’s sales in the third quarter of that year; that MEP’s profits continued to decline over the next seven quarters; and that MEP’s profits began to rise only after MEP brought a counterclaim for defamation against TCN in May 2008. Moore testified that MEP was puzzled by this decline because several factors during that time — such as an endorsement in late 2006 by Excelsior College, an online provider of nursing degrees; a similar endorsement by the Center for American Nurses in 2007; and a revamped sales staff — should have boosted MEP’s profits but did not. Fuller’s damages model assumed that, absent the Business Statements, MEP’s nationwide revenues for each of the next seven quarters (October 2006 through June 2008) would have remained the same as in the third quarter of 2006 ($199,210). Based on this assumption, Fuller calculated lost profits of $97,342. TCN called its own expert witness, Wheeler, to rebut Fuller’s testimony. Wheeler testified that Fuller’s damages model was flawed because it failed to account for the fact that MEP’s quarterly revenues had been in steady decline even before the Business Statements were published, falling 45% for the fourteen fiscal quarters before July 2006. The jury concluded that the Business Statements were “defamatory in nature” to MEP and awarded $86,426 in lost *412profits, less than the $97,342 Fuller proposed.
In moving for judgment as a matter of law, TCN made only a general argument that insufficient evidence supported the jury’s verdict. TCN makes a much more specific argument on appeal, contending that the lost profits award should be vacated because Fuller’s calculation was based on the erroneous assumption that MEP would otherwise have earned the same profits in the seven quarters following the third quarter of 2006, when the Business Statements were published, despite the fact that MEP’s profits had also declined steadily during the fourteen quarters before the Business Statements were published. TCN also criticizes Fuller’s model because it estimates national lost revenues despite the fact that the evidence at trial confirmed only that the Business Statements were published at TCN’s regional sales meeting.
Because TCN did not raise these specific issues with the appellees’ methodology in its motion for judgment as a matter of law, they arguably are waived. But even when addressed on the merits, these issues do not provide a basis for vacating the lost profits award. The Texas Supreme Court has explained that
[rjecovery for lost profits does not require that the loss be susceptible to exact calculation. However, the injured party must do more than show that it suffered some lost profits. The loss amount must be shown by competent evidence with reasonable certainty. This is a fact-intensive determination. At a minimum, opinions or lost-profit estimates must be based on objective facts, figures, or data from which the lost-profits amount may be ascertained.
Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 504 (Tex.2001) (citations omitted). “Where the business is shown to have been already established and making a profit at the time when the contract was breached or the tort committed, such pre-existing profit, together with other facts and circumstances, may indicate with reasonable certainty the amount of profits lost.” Tex. Instruments, Inc. v. Teletron Energy Mgmt., Inc., 877 S.W.2d 276, 279 (Tex.1994). Although “[a] jury may not arbitrarily assess an amount neither authorized nor supported by the evidence presented at trial,” it “has the discretion to award damages within the range of evidence presented at trial.” Knox v. Taylor, 992 S.W.2d 40, 62 (Tex.App.Houston [14th Dist.] 1999, no pet.). “[T]he jury may consider conflicting expert testimony on a particular issue and, using its judgment as the finder of fact, blend that testimony to arrive at a proper verdict.” Id. at 63.
Here, the appellees presented objective evidence of past profits and described factors that should have increased those profits during the time after the Business Statements were published. In assessing the strength of this evidence, the jury had the benefit of TCN’s cross-examination of Fuller and the testimony of TCN’s own expert witness, 'Wheeler. The jury settled on a lost profits figure lower than that proposed by Fuller, indicating that the jury considered the conflicting expert testimony in arriving at a damages figure. Contrary to TCN’s contention, there is sufficient evidence in the record to support the jury’s conclusion as to lost profits. Cf. Am.’s Favorite Chicken Co. v. Samaras, 929 S.W.2d 617, 629 (Tex.App.-San Antonio 1996, writ denied) (“Each side questioned certain assumptions made in the other party’s damage model. The jury was free to weigh this evidence in light of the various issues raised as to each party’s model.... We are not called upon to reweigh the evidence, and we do not find that the evidence supporting the jury’s finding is so weak as to make the finding clearly wrong or manifestly unjust. The requirement of ‘reasonable certainty’ was met....”).
*4134. Tortious Interference
TCN also challenges the jury’s $1,600 verdict for lost profits relating to tortious interference with prospective business relations. TCN argues that MEP “presented no evidence of a reasonable probability that MEP would have completed any sale to a prospective customer but for TCN’s publication of the Business Statements.” TCN properly raised this issue in its motion for judgment as a matter of law. The district court rejected it, reasoning that “[a]ll that Texas law requires is a reasonable probability that parties would have entered into a contractual relationship.”
TCN correctly points out that to establish tortious interference with prospective contract, a plaintiff must show a “reasonable probability” of a contractual relationship that extends beyond “mere negotiations” with a prospective customer. Milam v. Nat’l Ins. Crime Bureau, 989 S.W.2d 126, 132 (Tex.App.-San Antonio 1999, no pet.). “[M]ere evidence of a drop in customers is not sufficient evidence” to establish reasonable probability. SP Midtown, Ltd. v. Urban Storage, L.P., No. 14-07-00717-cv, 2008 WL 1991747, at *9 (Tex.App.-Houston [14th Dist.] 2008, pet. denied) (citing Milam, 989 S.W.2d at 132).
In response, the appellees argue only that MEP’s “prior strong reputation and its professional endorsements created a reasonable probability that MEP would enter into new contracts with customers” and suggest that one may infer tortious interference from the company’s falling profits. This evidence is not sufficient to support the tortious interference verdict. Id. Accordingly, we vacate the $1,600 tor-tious interference award.
C. The Trademark Judgment
TCN argues that it is entitled to judgment as a matter of law that MEP violated § 43(a)(1) of the Lanham Act, 15 U.S.C. § 1125(a)(1), when it purchased the term “The College Network” from Google and Yahoo as a search-engine keyword to summon MEP’s sponsored-link advertising. The jury rejected this claim, holding that although “The College Network” was a valid trademark, MEP’s use of it did not violate the Lanham Act.
To establish a claim for trademark infringement under the Lanham Act, TCN was required to show that 1) it had a valid trademark; 2) MEP used the mark in commerce without TCN’s permission; 3) MEP’s use was “likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association” of MEP with TCN; and 4) TCN sustained damage as a result of this confusion. 15 U.S.C. § 1125(a)(1); see also Sport Supply Group, Inc. v. Columbia Cas. Co., 335 F.3d 453, 460 (5th Cir.2003). The jury instructions assumed that the mark had been used in commerce and instructed the jury on the legal standards for determining the validity of the mark and the likelihood of confusion. The jury verdict form asked the jury whether 1) “‘The College Network’ [wa]s a valid trademark or name,” and if so 2) whether “MEP infringed [it].” The jury answered yes to the first question but no to the second.
TCN moved for judgment as a matter of law on its Lanham Act claim, arguing that the evidence at trial established a likelihood of confusion as a matter of law. MEP argued in response that whether or not likelihood of confusion was established, MEP’s use of “The College Network” was not a “use in commerce” under the Lan-ham Act. This appears to have been the first time in the litigation that either party or the district court questioned whether a use had in fact occurred. The district court nevertheless agreed with the appel-lees that MEP’s use of the mark was not a “use in commerce” and did not reach *414TCN’s argument as to likelihood of confusion. TCN appeals the district court’s ruling as to use and argues that the evidence established likelihood of confusion as a matter of law.
We need not determine the correctness of the district court’s conclusion that there was no “use,” however, because assuming without deciding that there was, the evidence does not compel a finding of likelihood of confusion under the relevant Fifth Circuit law. The Fifth Circuit sets out a “nonexhaustive” list of factors to consider when determining likelihood of confusion. See Xtreme Lashes, LLC v. Xtended Beauty, Inc., 576 F.3d 221, 227 (5th Cir.2009). These factors are:
(1) the type of trademark; (2) mark similarity; (3) product similarity; (4) outlet and purchaser identity; (5) advertising media identity; (6) defendant’s intent; (7) actual confusion; and (8) care exercised by potential purchasers.
Id. “No one factor is dispositive,” and “[i]n addition to the listed factors, a court is free to consider other relevant factors in determining whether a likelihood of confusion exists.” Elvis Presley Enters., Inc. v. Capece, 141 F.3d 188, 194 (5th Cir.1998). Likelihood of confusion requires “a probability of confusion,” not a mere possibility. Xtreme Lashes, 576 F.3d at 226.
TCN’s briefing does not argue that the evidence required a finding of likelihood of confusion under the Fifth Circuit test,5 but instead contends that such a finding is required under a test adopted in the Ninth Circuit for internet advertising cases. Un-
der this test, three of the likelihood-of-confusion factors — similarity of the marks, relatedness of the goods and services, and the parties’ simultaneous use of the internet as a marketing channel — are to be weighed most heavily. Perfumebay.com Inc. v. eBay, Inc., 506 F.3d 1165, 1173 (9th Cir.2007). Under this test, which the Ninth Circuit terms the “controlling troika or internet trinity,” if these three factors suggest that confusion is likely, “the other factors must weigh strongly against a likelihood of confusion to avoid the finding of
infringement.” Id. (quoting Interstellar Starship Servs., Ltd. v. Epix, Inc., 304 F.3d 936, 942 (9th Cir.2002)). But the Fifth Circuit has never adopted this rule, and TCN raised no objection at the charge conference to jury instructions based only on the applicable Fifth Circuit rule. Because TCN did not urge the Ninth Circuit test before the case was sent to the jury, it has waived any argument that the test should be applied. See Hobbs v. Alcoa, Inc., 501 F.3d 395, 397 (5th Cir.2007) (claim that different legal standard should have been applied is waived where party “failed to object to the substance of the jury instructions or the verdict form”).
IV. Conclusion
For the foregoing reasons, we VACATE the $1,600 tortious interference award but otherwise AFFIRM.
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.
. TCN also alleged misappropriation of trade secrets under Texas law, but that claim is not at issue in this appeal.
. MEP also alleged business disparagement. The jury ultimately awarded damages as to this claim, but TCN does not contest those damages on appeal.
. In fact, the district court specifically noted in its order denying TCN’s motion for judgment as a matter of law that the issue of objective verifiability was not before it.
. One oddity, which neither of the parties has raised, is that the jury questions as to whether the Statements were "defamatory in nature” or “defamatory per se ” appear redundant. Under Texas law, there are two types of defamation: defamation per quod and defamation per se. Defamation per quod "require[s] reference to additional facts” to ascertain the defamatory nature of the statement, and requires "proof of actual damages.” Moore v. Waldrop, 166 S.W.3d 380, 384 & n. 1 (Tex.App.-Waco 2005, no pet.). Defamation per se, by contrast, "itself gives rise to a presumption of ... damages” and requires no independent proof. Id. at 384. TCN characterizes the "defamatory in nature” instruction as an instruction as to defamation per quod. The district court instructed the jury only as to the meaning of "defamation per se." The district court did not instruct the jury as to the meaning of “defamatory in nature.”
. TCN did urge at oral argument that the evidence established likelihood of confusion as a matter of law under the Fifth Circuit test. But arguments not briefed and raised for the first time at oral argument are waived. N.L.R.B. v. Seaport Printing & Ad Specialties, Inc., 589 F.3d 812, 816 (5th Cir.2009). In any event, sufficient evidence supported the jury’s finding of no likelihood of confusion under the Fifth Circuit test. MEP and Moore presented extensive documentary evidence on the issue. The jury was permitted to view the keyword-search process and visually compare the companies' websites. TCN's own expert testified as to lack of actual confusion. The evidence does not point so "strongly and overwhelmingly in favor” of TCN that a reasonable jury could not arrive at a contrary verdict. Brown v. Bryan County, 219 F.3d at 456. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479721/ | 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 |
https://www.courtlistener.com/api/rest/v3/opinions/8479725/ | PER CURIAM: *
The Federal Public Defender appointed to represent Roberto Carlos Hernandez 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). Hernandez has not filed a response. Our independent review of the record and counsel’s brief discloses *459no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th CiR. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479727/ | KETHLEDGE, Circuit Judge.
Tony Crowder appeals his 235-month sentence for being a felon in possession of a firearm. We affirm.
I.
On September 29, 2001, Crowder and his brother had a physical confrontation. Crowder’s brother kicked down the door to Crowder’s house, then punched Crowder in the head. In response, Crowder grabbed a rifle from his bedroom closet and shot his brother in the foot.
Based on Crowder’s possession of the rifle, the government charged him with being a felon in possession of a firearm. A jury convicted him after a one-day trial. The district court calculated Crowder’s Guidelines range to be 262 to 327 months, based in part on an enhancement for possessing the firearm “in connection with ... a crime of violence[.]” U.S.S.G. § 4B1.4(b)(3)(A). The court sentenced Crowder to 262 months’ imprisonment.
Crowder appealed, arguing that the enhancement was improper because there was no crime of violence — he shot his brother in self-defense, he said. We concluded that the district court had not made a specific factual finding about the circumstances of the shooting, and thus that it was unclear whether the enhancement was appropriate. We remanded for the district court to make a finding on the factual issue and resentenee Crowder accordingly. *567See United States v. Crowder, No. 06-5542 (6th Cir. May 25, 2007).
On remand, the district court found that Crowder had indeed acted in self-defense. The court therefore eliminated the enhancement and re-calculated Crowder’s Guidelines range as 235 to 293 months. The court then sentenced Crowder to 235 months’ imprisonment.
This appeal followed.
II.
Crowder now raises two additional sentencing arguments. “We review the district court’s application of the Sentencing Guidelines de novo and its findings of fact for clear error.” United States v. Deitz, 577 F.3d 672, 698 (6th Cir.2009).
First, Crowder challenges the court’s calculation of his Guidelines range. Specifically, he asserts that the court improperly enhanced his criminal-history category from IV to VI based on U.S.S.G. § 4B1.4(c)(2). That provision — -just like the one in Crowder’s prior appeal — applies only if the defendant possessed a firearm in connection with a crime of violence. But this time the provision had no effect on Crowder’s Guidelines range. His prior convictions placed him in criminal-history category VI regardless of whether he possessed the firearm in connection with a crime of violence. See U.S.S.G. § 4B1.4(c)(l). Thus, the district court properly calculated his Guidelines range.
Second, Crowder asserts that he should have received a downward departure under U.S.S.G. § 5K2.10, which allows the court to reduce a sentence if “the victim’s wrongful conduct contributed significantly to provoking the offense behaviorf.]” We have previously held that the “decision to deny a downward departure is unreviewable unless the lower court incorrectly believed that it lacked authority to grant such a departure.” United States v. Madden, 515 F.3d 601, 610 (6th Cir.2008). Here, the district court expressly recognized its authority to grant a departure, but did not think Crowder deserved one. See Snt’g Tr. at 16 (“[T]o the extent defendant ... is suggesting the granting of a variance or a downward departure, the court ... does not believe such a variance is warranted”). Thus, Crowder’s argument is unreviewable.
Crowder also raises a number of issues in a pro se brief that he filed before we appointed an attorney for him. He is now represented by counsel, so we will not review the issues in his pro se submission. See United States v. Martinez, 588 F.3d 301, 328 (6th Cir.2009).
The district court’s judgment is affirmed. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479730/ | EBEL, Circuit Judge.
On September 17, 2009, this Court issued an “Order for Certification of Questions of State Law,” Lickteig v. Kolar, Jr., No. 08-2949 (8th Cir. Sept. 17, 2009) to the Supreme Court of the State of Minnesota certifying three questions of Minnesota state law to that Court. On May 27, 2010, the Minnesota Supreme Court issued an opinion answering those three questions. Lickteig v. Kolar, 782 N.W.2d 810 (Minn.2010).
On the basis of the answers provided by the Minnesota Supreme Court in this matter, the district court order this case is REVERSED and this matter is REMANDED to the U.S. District Court for the District of Minnesota for further proceedings consistent with our Order of Certification and the Supreme Court’s opinion answering the certified questions presented to it. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479732/ | ORDER
Appellant waives this appeal. It is therefore DISMISSED. The parties shall bear their own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479734/ | PER CURIAM:
Charles Duff, a Florida prisoner proceeding pro se, appeals the district court’s sua sponte dismissal of his 42 U.S.C. § 1983 complaint pursuant to 28 U.S.C. § 1915A(b)(l) for failure to state a claim. After review, we affirm the district court’s dismissal for failure to state a claim, but conclude that the district court erred in failing to give Duff leave to amend his complaint and, thus, vacate and remand for further proceedings consistent with this opinion.
I. BACKGROUND FACTS
A. Complaint Allegations
Beginning in October 2006, Duff was incarcerated at the Manatee County Jail. Duff was suffering from ongoing urinary problems. In late February 2007, Duffs condition became severe enough that he underwent an emergency catheterization and was placed in the jail’s infirmary. The day after the procedure, Duff was taken to the hospital for a series of diagnostic tests, including a CT scan and an ultrasound.
Between his hospital visit in late February 2007 and March 31, 2007, Duff was taken several times to an outside urologist, Dr. Bilak, who performed additional diagnostics, including a cystoscopy and colo-noscopy. Dr. Bilak advised Duff that he had an enlarged prostate and required a surgical procedure called a “Laser TURP (Trasuret[h]ral Resection of the Prostate).” Dr. Bilak prescribed Prosear and Flo-Max.
Throughout this period, Duff was catheterized. While at the jail, Duff was not scheduled for surgery or given any of the prescribed medication. Duff alleges that he has experienced unnecessary pain and suffering as a result.
On April 8, 2007, Duff was sentenced to five years in prison. Two days later, on April 11, 2007, Duffs catheter was removed and he was told, “You’re DOC’s problem now.” Duff was returned to the general population until May 2, 2007, when he was transferred to a state correctional facility in Orlando, Florida. Instead of transferring him, Duff alleges that a “Medical Hold” should have been placed on him so that the surgery could be performed. Duffs complaint seeks compensatory and punitive damages for Duffs pain and suffering up to May 2, 2007, when he was transferred to state custody.1
B. District Court Proceedings
Duff filed a pro se complaint under 42 U.S.C. § 1983, alleging an Eighth Amendment claim of deliberate indifference to his serious medical need. Duff asserted his deliberate indifference claim against the Sheriff of Manatee County, Brad Steub, and the “Chief Health Official” at the Manatee County Jail. In accordance with 28 U.S.C. § 1915A, the district court conducted a sua sponte preliminary screening and dismissed Duffs complaint for failure to state a claim. Because the dismissal did not state that it was without prejudice, the *870dismissal was by law with prejudice. See Fed.R.Civ.P. 41(b) (providing that any dismissal except for lack of jurisdiction, improper venue or failure to join a party under Rule 19 operates “as an adjudication on the merits” unless “the dismissal order states otherwise”).
As to Sheriff Steub, the district court concluded that Duffs complaint failed to allege he took any action giving rise to the Eighth Amendment claim and that Steub could not be held liable under a theory of respondeat superior.
As to what it termed the “Chief Medical Officer,”2 the district court concluded that Duffs complaint did not allege facts showing deliberate indifference to a serious medical need. After recounting Duffs medical history at the jail, the district court stated that Duff “does not allege that Dr. Bilak told him the surgery was an immediate medical emergency, and does not allege that he had an immediate medical emergency necessitating surgery just before or just after he was transferred to the Department of Corrections.” The district court also noted that Duff received tests, treatments and medications while housed at the jail and ultimately determined that Duff had “provided no support for his claim.” The district court dismissed Duffs complaint and entered judgment against him. Duff appealed.
II. DISCUSSION
A. Section 1915A(b)(l) Dismissal
Under § 1915A, the district court shall review, as soon as possible, a prisoner’s complaint in a civil action against a government entity. 28 U.S.C. § 1915A(a). The district court must then dismiss the complaint if it is “frivolous, malicious, or fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915A(b)(l).3
A dismissal under § 1915A is governed by the same standards as a dismissal under Federal Rule of Civil Procedure 12(b)(6). See Jones v. Bock, 549 U.S. 199, 215-16, 127 S.Ct. 910, 921, 166 L.Ed.2d 798 (2007); Leal v. Ga. Dep’t of Corrs., 254 F.3d 1276, 1278-79 (11th Cir.2001). That is, although the complaint need not provide detailed factual allegations, it must contain “sufficient factual matter” to state a claim that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S.-, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); accord Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 1965, 1974, 167 L.Ed.2d 929 (2007).
Even construing Duffs pro se appeal brief liberally, Duff does not appear to challenge the district court’s dismissal of his claim against Sheriff Steub. Thus, we affirm as to that claim. However, after liberally construing Duffs complaint, we conclude that the district court properly sua sponte dismissed Duffs medical treatment claim against the jail’s “Chief Health Official,” but erred in dismissing this claim without granting leave to file an amended complaint against the “Chief Health Official.”
B. Medical Treatment Claim Against the “Chief Health Official”
“To prevail on a deliberate indifference to serious medical need claim, Plaintiffs must show: (1) a serious medical need; (2) the defendants’ deliberate indifference to that need; and (3) causation between that indifference and the plaintiffs injury.” Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1306-07 (11th Cir.2009). A *871“serious medical need” is one that “if left unattended, poses a substantial risk of serious harm” and can be either: (1) “one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention”; or (2) one where “a delay in treating the need worsens the condition.” Id. at 1307 (quotation marks omitted); see also Danley v. Allen, 540 F.3d 1298, 1310-11 (11th Cir.2008). Although not all pain constitutes a serious medical need, failing to treat pain can violate the Fourteenth Amendment. Danley, 540 F.3d at 1311.4
To prove the requisite intent, a plaintiff must show: “(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than gross negligence.” Id. at 1312 (quotation marks and brackets omitted) (concluding that the plaintiff had sufficiently alleged deliberate indifference by alleging that defendants were aware of the risk of serious harm and that they knew about the plaintiffs suffering and also provided allegations about the basis for their knowledge). However, “imputed or collective knowledge cannot serve as the basis for a claim of deliberate indifference. Each individual Defendant must be judged separately and on the basis of what that person knows.” Burnette v. Taylor, 533 F.3d 1325, 1331 (11th Cir.2008) (citations omitted).
Here, construing Duffs complaint liberally, Duff alleged a serious medical condition. Dr. Bilak diagnosed Duff with an enlarged prostate that required surgery and prescription medication. Duffs painful urological symptoms grew severe enough to require an emergency catheteri-zation lasting at least eight weeks.
However, even with a liberal construction, Duffs complaint did not allege sufficient facts to show that the “Chief Health Official” was deliberately indifferent to that serious medical need. Deliberate indifference can be based on the defendant’s personal participation in the allegedly unconstitutional conduct or on the defendant’s actions as a supervisor. See Harper v. Lawrence County, Ala., 592 F.3d 1227, 1233-1237 (11th Cir.2010) (discussing deliberate indifference claims based on personal participation and supervisor liability).
Duffs complaint does not make clear which kind of claim he is asserting against the “Chief Health Official.” Duffs complaint also does not identify who: (1) treated him in the jail’s infirmary, (2) withheld the medication Dr. Bilak prescribed, (2) withdrew his catheter after he was sentenced, (4) told him he was “DOC’s problem now,” (5) placed him back in the general population until he was transferred and (6) decided not to place him on a medical hold and not to schedule the needed prostate surgery. Duffs complaint also does not allege why these actions were or were not taken or what personal or supervisory role (if any) the “Chief Health Official” might have played in them. And, importantly, Duff does not give the name of the “Chief Health Official.”
Thus, to the extent Duff asserts a personal participation claim, Duffs complaint does not allege that the “Chief Health Official” personally participated in the al*872legedly unconstitutional delay or denial of Duffs medical treatment. For the same reason, the complaint does not establish that the “Chief Health Official” had the subjective knowledge of the risk of serious harm to Duff and disregarded that risk because, under our precedent, subjective knowledge cannot be imputed or collective. See Burnette, 533 F.3d at 1331. To the extent Duff asserts a supervisor liability claim, Duffs complaint does not allege a causal connection between the allegedly unconstitutional medical care and the “Chief Health Official’s” supervisory actions, such as failure to act in the face of notice of widespread abuse, the implementation of a custom or policy, or a direction to subordinates. See Harper, 592 F.3d at 1236 (listing the ways to show a causal connection in a supervisory liability case).
Given these deficiencies, Duffs complaint did not allege a claim that was “plausible on its face” that the jail’s “Chief Health Official” in particular was deliberately indifferent to Duffs serious medical need. Accordingly, the district court properly dismissed Duffs medical treatment claim against the “Chief Health Official.”
C. Dismissal with Prejudice
When it appears that a pro se plaintiffs complaint, if more carefully drafted, might state a claim, the district court should give the pro se plaintiff an opportunity to amend his complaint instead of dismissing it. See Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir.1991), overruled in part by Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir.2002) (en bancj.5 Here, the district court’s dismissal order directed that judgment be entered against Duff and that the ease be closed. The order did not advise Duff that he would have leave to amend his complaint or state that the dismissal was without prejudice. See Fed.R.Civ.P. 41(b). Given that we cannot say that allowing Duff to amend his complaint would have been futile, we conclude that the district court erred in dismissing Duffs complaint without granting him leave to amend it.
In conclusion, we affirm the dismissal as to Sheriff Steub, but vacate the dismissal against the “Chief Health Official” of the Manatee County Jail and remand for further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.
. Duff also alleges that he has not received medication or surgery since his transfer to state custody and that he has filed a separate civil complaint against state correctional officials.
. Duff’s complaint uses the term “Chief Health Official,” but the district court treated the two terms the same.
. We review da novo a district court dismissal for failure to state a claim under § 1915A(b)(l), taking the allegations in the complaint as true. Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir.2006).
. Although Duff’s complaint cited the Eighth Amendment, the district court correctly noted that his medical treatment claim is properly brought under the Fourteenth Amendment because he was a pretrial detainee and not a prisoner during the events that form the basis of his claim. See Andujar v. Rodriguez, 486 F.3d 1199, 1203 n. 3 (11th Cir.2007). However, the deliberate indifference analysis is the same under either amendment. Harris v. Coweta County, 21 F.3d 388, 393 n. 6 (11th Cir.1994); Lancaster v. Monroe County, 116 F.3d 1419, 1425 n. 6 (11th Cir.1997). Thus, we apply precedent from Eighth Amendment cases and Fourteenth Amendment cases interchangeably. Lancaster, 116 F.3d at 1425 n. 6.
. Although Wagner overruled Bank as to counseled litigants, it specifically stated that it did not address pro se litigants. See Wagner, 314 F.3d at 542 n. 1. Thus, the Bank rule remains applicable to pro se litigants when their complaints are dismissed with prejudice. Id. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479736/ | CAMP, District Judge:
This appeal is from the district court’s partial final judgment in a proceeding arising from the bankruptcy of Far & Wide enterprises (“Far & Wide”), a conglomerate of travel companies (collectively, the “Debtors”). The Debtors filed for bankruptcy in the United States Bankruptcy Court for the Southern District of Florida in Miami in September 2003. The bankruptcy court confirmed a liquidating plan of reorganization, which appointed Appellant, Barry Mukamal, (“Appellant” or “Trustee”) as trustee of two trusts created to pursue claims on behalf of the Debtors and Debtors’ creditors who had voted to accept the liquidation plan. Appellees, the defendants in the district court proceeding, are former directors and officers of Far & Wide (the “Individual Defendants”), as well as Far & Wide’s majority shareholder, Wellspring Capital Management, LLC (“Wellspring”).
The Trustee brought this action against Wellspring, the Individual Defendants, and several other entities alleging a variety of claims. The claims on this appeal are based on allegations that Wellspring and the Individual Defendants breached their fiduciary duties to the Far & Wide entities. Wellspring and the Individual Defendants moved to dismiss these claims, and the district court found that the Trustee failed to state a claim for the alleged breaches of fiduciary duty and granted the motion to dismiss. Upon a review of the record, the parties’ briefs, and having the benefit of oral argument, we conclude the district court did not err and we affirm.
I. BACKGROUND
A. The Parties to this Dispute
The principal Debtor, Far & Wide, is a Delaware corporation formed in March 1999 to purchase travel companies. The Individual Defendants were officers and/or served on the board of directors of Far & Wide. Even though Far & Wide was incorporated in Delaware, the majority of its operations were in Florida.
Wellspring is a Delaware corporation that manages private investment partnerships, such as Loan Capital Funding, LLC, *893which focus on investing in or acquiring companies.1 Wellspring and the Individual Defendants formed the Debtor companies by consolidating various travel companies. Wellspring invested $45 million in the Debtors and acquired a majority of their stock. Wellspring also required the Debtors to appoint four of its partners to Far & Wide’s six-member board of directors. With a majority of the board, Wellspring exercised a controlling interest in the Debtors.
From the time of the company’s creation, Far & Wide planned to purchase and consolidate a number of smaller travel companies and to sell the resulting conglomerate to the highest bidder for a profit. Appellant alleges that Wellspring and the Individual Defendants violated their fiduciary duty of loyalty to Far & Wide by pursuing a plan that maximized their own self-interest but was harmful in the long-term to Far & Wide’s creditors.
Far & Wide established lines of credit with a number of banks to raise capital. In 1999, the Debtors entered into a loan agreement with a group of banks to infuse $70 million into the Debtors. The Debtors provided their assets as collateral. A year later, the Debtors obtained an additional $20 million in unsecured financing.
B. The Decline of Far & Wide
Time and circumstance, however, intervened in Far & Wide’s plan. Fewer travelers took overseas trips after the September 11, 2001, terrorist attacks and the subsequent outbreak of the SARS virus in Asia. Far & Wide faced a liquidity crises when the companies it owned and relied upon for operating funds faltered because of the struggling travel market. As a result, Far & Wide defaulted on the $70 million bank loan. After defaulting, Wellspring and the Individual Defendants represented to the banks that a single purchaser could still be found to purchase the consolidated travel enterprises. Based on these representations, the banks, which could have foreclosed, instead entered into a forbearance agreement. The banks, however, required the Debtors to hire consultants to aid in the daily operations of the Debtors’ business.
In 2002, Far & Wide hired an outside company to solicit potential purchasers. Pursuant to its agreement with the banks, Far & Wide also hired KPMG and The Recovery Group (“TRG”), a firm specializing in turnaround and crisis management. KPMG was retained to review Far & Wide’s records and to advise the directors and officers on how better to keep the company’s books and records. Far & Wide’s management neither implemented TRG’s recommendations, nor implemented the bookkeeping and other advice it received from KPMG.
The Trustee alleges that Wellspring and the Individual Defendants, in their attempt to sell the travel enterprises for a sufficient price to obtain a return on their investment, used false and misleading indicators of the Debtors’ financial health. In addition, the Trustee alleges that Wellspring and Far & Wide chose not to file for bankruptcy or wind down the Debtors at that time because it would have caused them to lose their $45 million investment. The Trustee alleged Far & Wide was insolvent by April 2002.
In October 2002, the Debtors began a reorganization. Part of that reorganization included two $10 million loans. The Debtors sought and obtained consent to *894the loans and the restructuring from major creditors. One of the loans came from Wellspring, which charged an interest rate of 10% over prime and not less than 14.75%. Additionally, Wellspring insisted that its loan be repaid before all the claims of the Debtors’ other creditors were paid. Wellspring and the Individual Defendants also converted a portion of Wellspring’s equity position into a debt claim, which would have higher priority in the event of a bankruptcy. These loans allowed the Debtors to continue operating their businesses. Even though the conditions were arguably unfairly favorable to Wellspring, the Debtors do not allege that Wellspring received any benefit as a result of the loan agreement, which was never repaid. Nor was there any allegation that the loan could have been obtained on more favorable terms. Certain of the Trustee’s claims in the district court, however, seek to subordinate the Wellspring loan to other creditors’ obligations and to recharac-terize Wellspring’s $12 million dollar debt claims as equity. The district court denied the motion to dismiss these claims, and the Trustee continues to pursue them in district court.
In July 2003, when the two $10 million loans came due, the Debtors could not repay the loans. Despite being insolvent, the Debtors continued operating the travel businesses, selling trips to customers, and purchasing services from vendors until September 23, 2003. Between July 2003 and September 23, 2003, the Debtors used customers’ deposits to pay operating costs. Some of those customers lost their deposits and did not receive their travel arrangements because of the bankruptcy. These customers have priority bankruptcy claims of more than $5.6 million. After bankruptcy, assets for which the Debtors had paid $150 million were sold for a net of $14 million.
C. The Trustee’s Allegations in the Complaint and Amended Complaint
The Trustee brought a number of claims against Wellspring and the Individual Defendants based on their having exercised control of the Far & Wide entities. The Trustee stated the following claims in the original Complaint:
1. The individual directors and officers of Far & Wide breached their fiduciary duties to the Debtors.
2. These individuals also breached their fiduciary duties to the Debtors’ creditors.
3. These individuals aided and abetted each other in breaching their fiduciary duties to the Debtors and to Debtors’ creditors.
4. Wellspring aided and abetted the Individual Defendants’ breaches of their fiduciary duties to both the Debtors and the Debtors’ creditors.
5. The claims of the Individual Defendants against the bankruptcy estate should be equitably subordinated in the bankruptcy to the claims of other creditors.
6. Wellspring misstated its purported debt claims in the bankruptcy and the debt claims should be recharacterized as equity.
7. Wellspring’s claims against the bankruptcy estate should also be equitably subordinated to the claims of the other creditors.
8. Ernst & Young, LLP (“Ernst & Young”), who prepared audited financial statements for the Debtors, aided and abetted the breach of fiduciary duties by Wellspring and the Individual Defendants, breached their duty of care to the Debtors and the Debtors’ creditors, and committed professional malpractice.
*895Subsequently, Ernst & Young and the Trustee agreed to submit the claims against Ernst & Young to arbitration, and the district court granted Ernst & Young’s motion to compel arbitration. After Ernst & Young was removed, Wellspring and the Individual Defendants moved to dismiss the Complaint in its entirety pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The district court denied Wellspring’s and the Individual Defendants’ motion to dismiss the claims for subordination and for recharacterization of debt (numbers five, six, and seven above), which continue before the district court. The district court dismissed the remaining claims (numbers one, two, three, and four above). With the Court’s permission, Appellant filed an 82 page Amended Complaint on December 5, 2007, which included the following claims:
a. Direct claims of the Debtors against Wellspring and the Individual Defendants for breach of fiduciary duties.
b. Derivative claims of the Debtors’ creditors alleging that Wellspring and the Individual Defendants breached fiduciary duties to the Debtors.
c. Direct claims of the Debtors against Wellspring and the Individual Defendants for deceptive and unfair trade practices.
d. Direct Claims by the Debtors against Wellspring and the Individual Defendants for aiding and abetting each other’s breach of their fiduciary duties.
e. Derivative Claims by the Debtors’ creditors against Wellspring and the Individual Defendants for aiding and abetting each other’s breach of their fiduciary duties.
Wellspring and the Individual Defendants moved to dismiss the Amended Complaint. The district court granted the motion, dismissed the Amended Complaint, and entered partial final judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure so that the Trustee could appeal the dismissal of the breach of fiduciary duty claims while the claims for subordination and for recharac-terization of debt proceeded in the district court.
D. The Issues on Appeal
Appellant appeals the district court’s dismissal of the Debtors’ direct claims for breach of fiduciary duty by Appellees, the dismissal of the Debtors’ creditors’ direct claims against Appellees for breach of fiduciary duty owed to them, and the dismissal of the creditors’ derivative claims against Appellees. Appellant also appeals the dismissal of the related aiding and abetting claims. Finally, Appellant appeals the district court’s decision to apply Delaware rather than Florida law to the fiduciary duty claims. Appellant does not appeal the dismissal of the deceptive trade practices claims (claim c. above) or the dismissal of the claims against Ernst & Young (claim 8. above), which were compelled to arbitration. The equitable subordination claims, the claim for recharacteri-zation of Wellspring’s (claims 5., 6., and 7. above) debt as equity, and a claim against Wellspring for disallowance of a claim in bankruptcy continue in the district court.
II. JURISDICTION
The district court had jurisdiction over this case pursuant to 28 U.S.C. § 1384, which provides that district courts have original jurisdiction over civil proceedings related to bankruptcy cases brought under Title 11. This Court has jurisdiction over an appeal from the final judgment of the district court pursuant to 12 U.S.C. § 1291. See also Thigpen v. Smith, 792 F.2d 1507, 1516 n. 15 (11th Cir.1986) (federal appellate courts have jurisdiction to review partial final judgments entered pursuant to Fed.R.Civ.P. 54(b)).
*896III. STANDARD OF REVIEW
This Court reviews the district court’s dismissal for failure to state a claim de novo, accepting the allegations in the Complaint and Amended Complaint as true and construing those facts in the light most favorable to the Trustee. Mills v. Foremost Ins. Co., 511 F.3d 1300, 1303 (11th Cir.2008). The Court reviews a district court’s order dismissing claims for lack of standing de novo. Miccosukee Tribe of Indians v. Florida State Athletic Com’n, 226 F.3d 1226, 1228 (11th Cir.2000). Finally, the district court’s decision to apply Delaware substantive law to the Trustee’s claims is a legal question, which the Court also reviews de novo. Grupo Televisa, S.A. v. Telemundo Comm. Group, Inc., 485 F.3d 1233, 1239 (11th Cir.2007).
To survive a motion to dismiss, a complaint need not contain “detailed factual allegations,” but it must contain sufficient factual allegations to suggest the required elements of a cause of action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007); Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295-96 (11th Cir.2007). “[A] formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555-56, 127 S.Ct. 1955. Nor will mere labels and legal conclusions withstand a 12(b)(6) motion to dismiss. Id. This is a stricter standard than the Supreme Court described in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957), which held that a complaint should not be dismissed for failure to state a claim “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Twombly, 550 U.S. at 577, 127 S.Ct. 1955. Under the standard articulated by the Supreme Court in Twombly, the complaint cannot suggest the existence of a claim; the complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 570, 127 S.Ct. 1955.
IV. DISCUSSION
A. Choice of Applicable Law
The Trustee brought this case in Florida, alleging that the Individual Defendants and Wellspring breached fiduciary duties owed to Far & Wide and its creditors. Although the acts forming the basis of the Trustee’s claims occurred largely in Florida, both Far & Wide and Wellspring were incorporated in Delaware. The district court held that Delaware law, not Florida law, applied to the substantive claims asserted by the Trustee. On Appeal, Appellant contends that the district court erred by applying Delaware law.
The district court had jurisdiction of this matter pursuant to 28 U.S.C. § 1334. Federal courts sitting in diversity apply the forum state’s choice of law rules. United States Fid. & Guar. Co. v. Liberty Surplus Ins. Corp., 550 F.3d 1031, 1033 (11th Cir.2008); Grupo Televisa, 485 F.3d at 1240. Federal courts have adopted this principle in cases arising under 28 U.S.C. § 1334, when the underlying rights and obligations of the parties are defined by state law. See Official Comm. of Unsecured Creditors v. Donaldson, Lufkin & Jenrette Sec. Corp., No. 00-8688, 2002 WL 362794, at *5 (S.D.N.Y. Mar.6, 2002). The Trustee filed this action in Florida; therefore, Florida’s choice of law rules apply.
The fiduciary duties owed to a corporation by its officers and directors concern the internal affairs of a corporation. See Edgar v. MITE Corp., 457 U.S. 624, 645, 102 S.Ct. 2629, 2642, 73 L.Ed.2d 269 (1982) (“matters peculiar to the relationships among or between the corporation and its current officers, directors, and shareholders” are a corporation’s internal affairs); see also Nagy v. Riblet Prods. Corp., 79 *897F.3d 572, 576 (7th Cir.1996) (applying the internal affairs doctrine to claims of breach of fiduciary duty by a controlling shareholder). The Florida Business Corporation Act provides that the internal affairs of a corporation are governed by the laws of the state of incorporation. Fla. Stat. § 607.1505(3); Chatlos Found., Inc. v. D’Arata, 882 So.2d 1021, 1023 (Fla. 5th DCA 2004) (applying the internal affairs doctrine as codified by the Florida Not for Profit Corporation Act, which is identical to Fla. Stat. § 607.1505(3)).
[The Florida Business Corporation Act] does not authorize this state to regulate the organization or internal affairs of a foreign corporation authorized to transact business in this state.
Fla. Stat. § 607.1505(3). The Restatement (Second) of Conflict of Laws also provides that the internal affairs of corporations are governed by the laws of the state of incorporation. See Restatement (Second) of Conflict of Laws §§ 302-9 (1971).
As claims concerning the internal affairs of Far & Wide, the fiduciary duty claims asserted by the Trustee are governed by the law of Delaware, the state of incorporation. Fla. Stat. § 607.1505(3); Chatlos, 882 So.2d at 1023. An exception to the internal affairs doctrine exists in the “unusual case” where the forum state has a more significant relationship to the parties and the occurrence. Restatement (Second) of Conflict of Laws §§ 302, 306, 309. The Trustee contends that Florida has a more significant relationship to this dispute, and, thus, the internal affairs doctrine should not apply to this case. As the district court noted, however, the Trustee has not shown that Florida has the type of overriding interest in applying its laws to this dispute so as to rebut the presumption that the laws of the state of incorporation apply to claims for breach of fiduciary duty by officers, directors, and a majority shareholder. See Restatement (Second) of Conflict of Laws § 6 (1971) (setting forth factors to consider for determining whether a forum other than the state of incorporation has a more significant relationship to the parties or occurrence). Accordingly, the district court was correct to apply Delaware law to the substantive claims in this dispute.
B. Appellant’s Attempt to Bring Creditors’ Claims Directly Against Wellspring and the Individual Defendants
In the original Complaint, the Trustee sought to bring claims against the Individual Defendants and Wellspring for breaching a fiduciary duty owed directly to the creditors after the Debtors became insolvent. See supra Part I.C. claims 2-4. In the Amended Complaint, the Trustee attempted to bring derivative claims on behalf of the creditors based on the Individual Defendants’ and Wellspring’s breaches of fiduciary duties owed to the Debtors. See supra Part I.C. claims b, d. The district court dismissed the direct creditor claims in the original Complaint, holding Delaware law did not recognize direct creditor claims under North American Catholic Educational Programming Foundation, Inc. v. Gheewalla, et al., 930 A.2d 92, 101 (Del.2007). The district court alternatively held that the Trustee did not have standing to bring direct creditors’ claims on behalf of less than all creditors under Caplin v. Marine Midland Grace Trust Co., 406 U.S. 416, 92 S.Ct. 1678, 32 L.Ed.2d 195 (1972), and E.F. Hutton & Co. v. Hadley, 901 F.2d 979, 986 (11th Cir.1990). The district court dismissed the derivative claims as duplicative and a waste of judicial resources. We find that the district court was correct for the following reasons.
1. Delaware Law Does Not Recognize Direct Claims for Breach of Fiduciary Duty by the Debtors’ Creditors.
The original Complaint asserted three direct claims on behalf of the Debt*898ors’ creditors against Wellspring and the Individual Defendants for breach of fiduciary duty. The Trustee argued that both the Individual Defendants and Wellspring owed fiduciary duties directly to the Debtors’ creditors once Far & Wide became insolvent. The district court dismissed the creditors’ direct claims for breach of fiduciary duty under Delaware law. Appellant appeals the dismissal as error.
Delaware law recognizes that officers and directors are given wide latitude to run a corporation as they see fit for the benefit of shareholders. Michelson v. Duncan, 407 A.2d 211, 217 (Del.1979). Appellant argues, therefore, that the directors’ and officers’ duties change once a corporation becomes insolvent because Delaware courts have long recognized that, when a corporation becomes insolvent, its property must be administered as a trust fund for the benefit of creditors. See Credit Lyonnais Bank Nederland, N.V. v. Bathe Communications Corp., 1991 WL 277613, at * 1155 n. 55 (Del.Ch.1991) (describing the “curious” incentives and divergence of interests creditors and directors face during insolvency); Bovay v. H.M. Byllesby & Co. 38 A.2d 808, 813 (Del.1944).
Appellant contends that, upon insolvency, the officers and directors owe a fiduciary duty directly to creditors, which requires them to maximize the company’s value for the creditors, as the corporation’s residual value holders. See, e.g., Geyer v. Ingersoll Publications Co., 621 A.2d 784, 787-88 (Del.Ch.1992) (suggesting that a fiduciary duty to creditors arises at insolvency); see generally Richard M. Cieri & Michael J. Riela, Protecting Directors and Officers of Corporations That Are Insolvent: Important Considerations, Practical Solutions, 2 DePaul Bus. & Comm. L.J. 295, 301-02 (2004) (drawing the inference from prior Delaware authority that insolvency alters the nature of fiduciaries’ duties); Laura Lin, Shift of Fiduciary Duty Upon Corporate Insolvency: Proper Scope of Directors’ Duty to Creditors, 46 Vand. L.Rev. 1485, 1512 (1993) (same).
The Delaware Supreme Court provided clear guidance on this issue in Gheewalla, 930 A.2d at 101. In Gheewalla, a creditor of a Delaware corporation brought direct claims for breach of fiduciary duty against three of the corporation’s directors. Id. at 94. The complaint alleged that three directors used their control of the corporation to favor Goldman Sachs in violation of their fiduciary duties to the corporation. Id. The directors moved to dismiss the complaint for failure to state a claim. Id.
The Delaware Supreme Court held that creditors of an insolvent company do not have a direct claim against directors or managers for breach of fiduciary duty. Id. The Court explained that under Delaware law, “[djirectors owe their fiduciary obligations to the corporation and its shareholders.” Id. at 99. Because directors and officers do not owe a fiduciary duty to creditors, even after insolvency, the district court correctly dismissed the Debtors’ creditors’ direct claims for breach of fiduciary duty.
C. The Creditors’ Derivative Claims Are Mirror Images of the Debtors’ Claims and Cannot be Brought in the Same Action.
In the Amended Complaint, the Trustee also brought derivative claims by the Debtors’ creditors. These claims attempt to assert derivatively the identical direct claims of the Debtors for breaches of fiduciary duty and depend on the same factual allegations. The district court referred to them as “mirror images” of the Debtors’ claims and, in a well-reasoned analysis, dismissed these derivative claims as duplicative of the Debtors’ direct claims.
A plaintiff may only recover from a defendant once for a single claim. See St. *899Luke’s Cataract & Laser Inst., P.A. v. Sanderson, 573 F.3d 1186, 1203 (11th Cir.2009). If the Debtors succeed on the direct claims against the Individual Defendants then the creditors’ derivative claims must fail because the Individual Defendants cannot be liable twice for the same claim. See Gen. Tel. Co. v. EEOC, 446 U.S. 318, 333, 100 S.Ct. 1698, 1708, 64 L.Ed.2d 319 (1980) (“courts can and should preclude double recovery by an individual”); White v. United States, 507 F.2d 1101, 1103 (5th Cir.1975) (“no duplicating recovery of damages for the same injury may be had”).2 If, however, the Debtors’ direct claims fail to state a claim then the creditors’ derivative claims must also fail because the claims are based on the same factual allegations. Accordingly, this Court affirms the district court’s dismissal of Counts III, IV, V, VI, and VII of the Amended Complaint.
D. Appellant’s Complaint and Amended Complaint Failed to State a Claim for Breach of Fiduciary Duty by Defendants.
The Trustee does have standing to bring direct claims for breach of fiduciary duty on behalf of the Debtors. The Amended Complaint alleges that Wellspring and the Individual Defendants breached both the fiduciary duty of loyalty and the fiduciary duty of care owed to the Debtors. The claims are based on allegations that the Individual Defendants and Wellspring operated Far & Wide with the goal of continuing its operations until it could be sold for a profit and refused to take other measures that may have better preserved its value for the creditors. The Trustee specifically focuses on the secured loan transaction between the Debtors and Wellspring in October 2002 as a primary example of this breach of duty.
The Trustee contends that Wellspring was preferred over other shareholders, and that the Individual Defendants, as interested inside directors, are not entitled to the protection of the business judgment rule. The Trustee contends that because the Individual Defendants are not protected by the business judgment rule, the burden shifts to the Individual Defendants and Wellspring to demonstrate that the loan was “entirely fair.” For the following reasons, this Court finds that the district court did not err in dismissing the breach of fiduciary duty claims asserted against the Individual Defendants and Wellspring since the Complaint failed to state sufficient facts “to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955.
1. The Duty of Loyalty
Under Delaware law, “[t]he essence of the duty of loyalty is that ‘corporate officers and directors are not permitted to use their position of trust and confidence to further their private interests.’ ” 1-4 Corporate Governance: Law and Practice § 4.03 (quoting Guth v. Loft, Inc., 5 A.2d 503, 510 (Del.1939)). The duty of loyalty requires a fiduciary to act in the best interests of the corporation. Cede & Co. v. Technicolor, Inc., 634 A.2d 345, 361 (Del.1993) (“the duty of loyalty mandates that the best interest of the corporation and its shareholders take precedence over any interest possessed by a ... controlling shareholder and not shared by the stockholders generally.”) A claim for breach of the duty of loyalty under Delaware law exists where (1) the company is harmed or (2) a fiduciary personally profits from a *900corporate opportunity. See Oberly v. Kirby, 592 A.2d 445, 463 (Del.1991) (holding a breach of the fiduciary duty of loyalty can exist where either the beneficiary is harmed or the fiduciary uses knowledge gained from his position to advance his independent interests).
The Amended Complaint alleges that the Individual Defendants and Wellspring breached the duty of loyalty by favoring the interests of Wellspring over those of the Debtor. In short, the Amended Complaint alleges that the Individual Defendants managed Far & Wide for the benefit of a majority shareholder and that Far & Wide obtained a loan from Wellspring in October 2002, which allowed the company to continue to run its troubled businesses rather than preserving its value for the creditors.
As a threshold matter, the conclusory allegations concerning breach of the duty of loyalty in both complaints are not supported by the necessary factual allegations “to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. Moreover, the Trustee alleges injury only to the Debtors’ creditors. For example, the Amended Complaint alleges that the decision to accept the loan from Wellspring in 2002 and continue operating the business “resulted in the diminution in value of Far & Wide’s assets to a point where Far & Wide did not have any ability to pay its liabilities to its creditors when bankruptcy protection was finally sought....”
In order to state a claim for breach of the duty of loyalty, the Trustee must allege facts that indicate either Far & Wide or its minority shareholders, not Far & Wide’s creditors, were injured by the action of the Individual Defendants. See Cede & Co., 634 A.2d at 361 (stating that a breach of the duty of loyalty can exist where a fiduciary pursues his own interest over that of the shareholders). Neither the Complaint nor the Amended Complaint contain sufficient factual allegations to support such a claim. The Trustee does not allege facts demonstrating that the majority shareholders were preferred in any way over the minority shareholders. No allegations indicate that the loan could have been obtained on more favorable terms, that the Individual Defendants personally benefitted, or that Wellspring ben-efitted at all since the loan was never repaid.
The only injury alleged in the Amended Complaint was to the Debtors’ creditors as a result of Far & Wide staying in business longer and deepening its insolvency, when it would have been in the best interest of the creditors for Far & Wide to cease business and liquidate. Delaware law, however, does not recognize a cause of action for “deepening insolvency.” Trenwick Am. Litig. Trust v. Ernst & Young, LLP, 906 A.2d 168, 174, 204 (Del.Ch.2006).
Even when a firm is insolvent, its directors may, in the appropriate exercise of their business judgment, take action that might, if it does not pan out, result in the firm being painted in a deeper hue of red. The fact that the residual claimants of the firm at that time are creditors does not mean that the directors cannot choose to continue the firm’s operations in the hope that they can expand the inadequate pie such that the firm’s creditors get a greater recovery.
Id. at 174.
The Trustee alleges that the actions taken by the board of directors were done so that the company could continue operating in an attempt to facilitate a sale of the corporation to a third party. The sale, however, would have maximized the value to all shareholders. Recent Delaware cases hold that officers and directors do not breach the duty of loyalty by exereis-*901ing their business judgment and continuing to operate an insolvent corporation rather than entering bankruptcy and preserving assets to pay creditors. Trenwick, 906 A.2d at 174; Gheewalla, 930 A.2d at 99 (explaining that the general rule is that directors of a corporation do not owe creditors duties beyond the relevant contractual terms).
In fact, Gheewalla presents an analogous factual situation. In Gheewalla, a creditor of Clearwire Holdings, Inc. (“Clearwire”) sued several directors of Clearwire for breach of fiduciary duty. Gheewalla, 930 A.2d at 94. The creditors alleged that the directors breached their fiduciary duties once Clearwire became insolvent and effectively went out of business because the directors allowed the corporation to continue holding certain licenses. Id. at 97-99. Holding onto these licenses required large expenditures of cash each month, which otherwise would have been available for creditors had the corporation liquidated. Id. at 97-99 The Delaware Supreme Court stated:
It is well established that the directors owe their fiduciary obligations to the corporation and its shareholders. While shareholders rely on directors acting as fiduciaries to protect their interests, creditors are afforded protection through contractual agreements, fraud and fraudulent conveyance law, implied covenants of good faith and fair dealing, bankruptcy law, general commercial law and other sources of creditor rights.
Id. at 99. All these remedies are available to the creditors in the present situation, and they continue to pursue some in the district court. If they were wronged, they have ample recourse, but the remedies do not include bringing a claim for breach of fiduciary duty where the only alleged injury is a deepening insolvency which harmed only creditors.
Since Delaware law does not recognize a duty to liquidate, and the Amended Complaint fails to allege sufficient facts to demonstrate the necessary elements of a claim for breach of the duty of loyalty to the Debtors, the district court did not err in dismissing Appellant’s claim for breach of the fiduciary duty of loyalty.
2. The Duty of Care
“The fiduciary duty of care requires that directors of a Delaware corporation use that amount of care which ordinarily careful and prudent men would use in similar circumstances, and consider all material information reasonably available in making business decisions.” In re Walt Disney Co. Derivative Litigation, 907 A.2d 693, 749 (Del.Ch.2005) (internal quotation and citation omitted). A deficiency in the process employed by the directors is only actionable as a breach of the duty of care if the director’s actions are “grossly negligent.” Id. Gross negligence includes a director’s failure to inform him or herself of available material facts when making a decision on behalf of the corporation. See In re Walt Disney Co. Derivative Litigation, 906 A.2d 27, 64-64 (Del.Super.Ct.2006); Smith v. Van Gorkom, 488 A.2d 858, 874 (Del.1985) (holding that board members who voted to approve a merger without reviewing any documentation regarding the adequacy of the proposed purchase price violated the duty of care), overruled on other grounds by Gautier v. Stephens, 965 A.2d 695, 713 n. 45 (Del.2009); Cede & Co. v. Technicolor, Inc., 634 A.2d 345, 367-68 (Del.1993) (holding that the duty of care requires directors to act on an informed basis). Simply put, the standard is procedural, rather than substantive. In fact, Delaware law allows a company’s board to even make an “irrational” decision, so long as the decision-making process employed by the board “was either rational or employed in a good *902faith effort to advance corporate interests.” In re Caremark Int’l Inc. Derivative Litig., 698 A.2d 959, 967 (Del.Ch.1996) (emphasis in original). Thus, directors who make a decision after employing a rational decision-making process and considering the pertinent information will not be liable for a breach of the fiduciary duty of care. In re Caremark, 698 A.2d at 967; Cede & Co., 634 A.2d at 367-68. Moreover, even upon insolvency, the duty of care to the corporation remains the same. Gheewalla, 930 A.2d at 101.
The Amended Complaint fails to allege that the Individual Defendants did not employ a rational decision-making process or did not consider material information when making the decision to obtain additional loans and continue operating Far & Wide rather than proceed into bankruptcy. The Amended Complaint alleges only that the Individual Defendants “refused or failed to follow [the] advice” of the two independent consultants hired by Far & Wide’s management. To state a claim for breach of the duty of care under Delaware law, a plaintiff must allege more than that the directors and officers of a corporation received information from outside consultants, but decided not follow this advice. Cede & Co., 634 A.2d at 367-68. Here, the Individual Defendants discharged their obligations under the duty of care by hiring consultants and by considering the consultants’ advice, even if they did not follow the advice. Id. Accordingly, the district court properly dismissed Counts VI and XI of the Amended Complaint.
E. The Amended Complaint Failed To State A Claim for Aiding and Abetting a Breach of Fiduciary Duty.
In order to state a claim for aiding and abetting a breach of fiduciary duty under Delaware law, a plaintiff must allege: (1) the existence of a fiduciary relationship, (2) that the fiduciary breached its duty, (3) that a defendant, who is not a fiduciary, knowingly participated in the breach, and (4) that damages to the plaintiff resulted from the concerted action of the fiduciary and the non-fiduciary. Gotham Partners L.P. v. Hailwood Realty Partners, et al., 817 A.2d 160, 172 (Del.2002) (quoting Wallace v. Wood, 752 A.2d 1175, 1180 (Del.Ch.1999)). The Amended Complaint alleges that the Individual Defendants and the Wellspring Defendants aided and abetted each others’ breaches of fiduciary duties.
The underlying breaches of fiduciary duty that form the basis for the Debtors’ claims for aiding and abetting are the same breaches of fiduciary duty that the Court finds fail as a matter of law. See supra Part IV.D.1-2. Because the underlying breach of fiduciary duty claims fail, the claims that Wellspring and the Individual Defendants aided and abetted those breaches must follow suit. See Gotham Partners, 817 A.2d at 172 (a claim for aiding and abetting a breach of fiduciary duty requires that the fiduciary breach its duty). The district court correctly dismissed the aiding and abetting claims, and this Court affirms the district court’s dismissal of Counts IV, VII, IX, and XII.
V. CONCLUSION
For the foregoing reasons, this Court AFFIRMS the judgment of the district court.
. Loan Capital Funding, LLC acted as a conduit between Wellspring and the Debtors. Although the Trustee also named Loan Capital Funding, LLC as a defendant in the underlying litigation, the Court refers to both Wellspring individually and Wellspring and Loan Capital Funding, LLC collectively as “Wellspring”.
. Fifth Circuit decisions rendered on or before September 30, 1981, are binding precedent on this court. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479739/ | *134OPINION
ROTH, Circuit Judge:
Gustavo Leyva appeals from the District Court’s decision affirming the Commissioner of Social Security’s denial of his application for disability insurance and supplemental security income (SSI) benefits. Because the Commissioner’s decision to deny benefits was based on substantial evidence, we will affirm.
As the facts are well known to the parties, we give only a brief description of the relevant issues and procedural posture of the case.
Leyva applied for disability insurance and SSI benefits on February 4, 2004, alleging disability since August 31, 2003, due to an ankle fracture, depression, lumbar disc disease, a history of hypertension and tuberculosis, abdominal pain, and gallstones. A hearing was held before an administrative law judge (ALJ) on November 17, 2005. The ALJ found that residual pain from his ankle fracture constituted a “severe” impairment but ultimately concluded that Leyva’s age, education, and vocationally relevant experience, viewed in conjunction with the Medical-Vocational Guidelines in the applicable regulations, directed a conclusion of “not disabled” for purposes of the Social Security Act. The ALJ thus denied his application for benefits. Leyva sought review from the Appeals Council, which denied his request. Thus, the ALJ’s decision is the Commissioner’s final decision. Matthews v. Apfel, 239 F.3d 589, 592 (3d Cir.2001).
On February 2, 2007, Leyva filed suit challenging the Commissioner’s ruling in the United States District Court for-the District of New Jersey. On May 28, 2008, the District Court affirmed the Commissioner’s final ruling. Leyva filed a timely notice of appeal on July 25, 2008.
This Court has jurisdiction pursuant to 28 U.S.C. § 1291 and reviews the Commissioner’s denial of benefits for substantial evidence. See McCrea v. Comm’r of Soc. Sec., 370 F.3d 357, 359 (3d Cir.2004). “Substantial evidence ‘does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir.1999) (quoting Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988)).
The regulations set forth a five-step process to determine if a claimant is disabled and, thus, eligible for benefits. First, the ALJ must determine whether the claimant is engaged in substantial gainful activity. 20 C.F.R. § 404.1520(a)(i), (b). If so, the claimant is not disabled. Id. The ALJ found that Leyva had not engaged in substantial gainful activity since August 30, 2003.
At step two, the ALJ must determine whether the claimant suffers from a “severe” impairment, defined as one which “significantly limits [a claimant’s] physical or mental ability to do basic work activities.” Id. § 404.1520(a)(ii), (c). Only a severe impairment can render a claimant “disabled.” Id. The ALJ found that the “residuals of [Leyva’s] fractured anide” constituted a “severe” impairment.1
At step three, the ALJ compares the medical evidence of the claimant’s “severe” *135impairment(s) with those impairments presumed severe enough to preclude gainful work. Id. § 404.1520(a)(iii). If the claimant’s impairment is similar to one listed, the claimant is eligible for benefits. The ALJ found that Leyva’s ankle injury did not reach the level of severity of those listed in the regulations.
Step four requires the ALJ to consider whether the claimant retains the residual functional capacity to perform his past relevant work. Id. § 404.1520(a)(iv). If so, the inquiry ends and the claimant is not eligible for benefits. The ALJ determined that Leyva could not return to his previous employment as a maintenance worker.
Finally, at step five, the burden of production switches to the Commissioner, who must demonstrate that there are other jobs existing in significant numbers in the national economy that the claimant can perform. Id. §§ 404.1520(a)(iv), 404.1560(c)(1). The ALJ looked to the medical vocational guidelines, which contain a series of rules that direct a finding of “disabled” or “not disabled” depending on a claimant’s age, education, vocational profile, and residual functional capacity. Based on those guidelines, the ALJ determined that Leyva could perform “sedentary work,” defined as “work which is generally performed while sitting and never requires lifting in excess of 10 pounds.” Leyva was, thus, deemed “not disabled” under the regulations.
Leyva contends that the Commissioner erred by (1) failing to find that his depression and lumbar disc disease are severe impairments and (2) using the medical vocational guidelines to deny disability at step five. We reject both contentions.2
With respect to Leyva’s depression, the ALJ’s findings were supported by substantial evidence. Though Leyva was diagnosed with “major depressive disorder,” the diagnosing doctor also observed that he did not have suicidal or homicidal tendencies and was “able to follow instructions and the topic of conversation.” Doctors who had previously examined Leyva indicated that his concentration was unimpaired, he was fully oriented, and he presented as only mildly anxious. Leyva admitted that he took care of his personal appearance and hygiene and that he was able to travel by public transportation. In short, neither Leyva’s testimony nor his medical records undermine the ALJ’s conclusion that Leyva’s depression was not severe.
Likewise, the only medical evidence of Leyva’s alleged back impairment was a CT scan of his chest, dated August 2005, that indicates “possible” central disc herniation. Prior CT scans had not found any central disc herniation, and no follow-up examination was conducted to confirm the “possible” diagnosis. Further, Leyva has never received treatment for his alleged back impairment. Under these circumstances, the ALJ did not err in concluding that Leyva did not have a severe back impairment.
Finally, our review of the record convinces us that the ALJ’s determination at step five was not error, nor was the ALJ’s use of the medical-vocational guidelines improper in this context.
*136For the foregoing reasons, we affirm the judgment of the District Court.
. The District Court viewed this statement as a typographical error based on a later statement by the AU that Leyva's residuals of a fractured ankle were not severe. Both the District Court and the ALJ, however, went on to analyze steps three through five for Leyva's ankle injury; we therefore interpret the ALJ’s decision to be that the ankle injury was "severe" pursuant to step two.
. Leyva also takes issue with the fact that he was later deemed to be disabled as of March 31, 2006, one day after the ALJ issued his denial decision for the instant application. Leyva's subsequent disability application and adjudication, however, are not part of the administrative record and are, thus, outside the scope of our review. See Szubak v. Sec’y of Health & Human Servs., 745 F.2d 831, 833 (3d Cir.1984) (new evidence must relate to period for which benefits were denied). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479743/ | OPINION
POLLAK, District Judge.
Phat Van Le appeals from the grant of a motion for summary judgment in favor of the defendants. Van Le’s suit alleges that he was denied due process during disciplinary proceedings that resulted in his dismissal from dental school. He challenges the District Court’s opinion on the merits and also on the District Court’s decision to convert a motion to dismiss into a motion for summary judgment without providing further discovery.
*173I.
Le was a student at the defendant, New Jersey Dental School of the University of Medicine & Dentistry of New Jersey (UMDNJ). In Le’s third year, during an exam in Esthetic Dentistry, defendant Dr. Nicolas Conte, the exam proctor, observed suspicious movements that indicated Le might be looking at another student’s exam. Conte announced that cheating was not acceptable and the suspicious behavior ceased. Another proctor, Dr. Rosen, did not observe the behavior.
More than a month after the examination, Conte submitted to the dental school a formal written complaint against Le. Notice was given to Le that he was accused of cheating on the examination proctored by Conte and that he would need to appear before the Dental School Hearing Body in one week. The hearing notice listed certain rights that university policy gave Le, including: the right to call witnesses; the right to. have legal counsel outside the hearing room to advise him at any time; and the right to have a family member, faculty member, or student advise him during the hearing.
Le requested that the hearing be delayed, as it was scheduled during his final exam period, and two character witnesses that he wished to call had finals. Le’s request was denied because the university policy set a deadline for holding the hearing and rescheduling presented logistical problems. However, Le was informed that he was allowed to submit written statements from the students.
At the hearing, Conte testified to his observations. Four of Le’s classmates testified to other tests where they believed they saw Le cheat. Le called several witnesses, including the two who had the scheduling conflict that prompted his request for a continuance. Le called defendant Dr. Harold Zohn who testified that he observed Le cheat on another exam and confronted him about it. The transcript reflects Le questioning his own witnesses, cross-examining other witnesses, and in an active dialogue with the Hearing Body about the evidence. Following the hearing, Le had the opportunity to further supplement the hearing record, and he submitted documents stating that any unusual movements stemmed from a back condition that made it difficult for him to sit still for long periods.
The Hearing Body found Conte’s testimony credible and concluded that Le cheated during the Esthetic Dentistry examination. It also found that Le engaged in a similar pattern of unethical behavior in other courses. The Hearing Body recommended that Le be dismissed. This recommendation was then sent to Dean Greenberg, the Acting Associate Dean for Research, since the Dental School’s dean was recused. Greenberg met with Le to allow him to provide additional information. She decided that Le should be expelled. Le then, with the aid of counsel, appealed that decision to the Executive Vice President for Academic and Clinical Affairs of the UMDNJ. The Executive Vice President affirmed the expulsion.
Le then filed this lawsuit asserting claims for violation of his federal and state equal protection and due process rights. He also asserted state-law claims for defamation and false light. Defendants filed a motion to dismiss. Because this motion presented matters outside the pleading, the District Court, sua sponte, converted the motion to dismiss into a motion for summary judgment, gave notice to the parties, and allowed the parties to file additional materials.
II.
Le attributes several substantive and procedural errors to the District Court. *174We review a grant of summary judgment de novo. Kach v. Hose, 589 F.3d 626, 633-34 (3d Cir.2009). Summary judgment is appropriate when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The evidence of the nonmovant is to be credited and all justifiable inferences are to be drawn in his favor. Kach, 589 F.3d at 634. The motion can be granted only if the evidence is “so one-sided that one party must prevail as a matter of law.” Id.
A. Did the District Court Improperly Resolve Disputed Factual Issues?
For his first point of error, Le argues that the District Court improperly made findings of disputed factual issues.
First, whether the Hearing Body considered the prior instances of cheating to prove the one charged instance, or whether the Hearing Body enlarged the formal charges, are not material facts, as in either situation due process was not violated by consideration of past instances. The District Court did not make a factual finding about the use of the evidence of other instances of cheating but rather stated that introduction of the evidence did not offend due process in whatever way the evidence was used by the Hearing Body. As discussed in Part 11(B) infra, of this opinion, this did not violate due process.
The District Court did not err in finding that Le had a meaningful opportunity to present his defense. Le argues that the short period of time to prepare left him unable to present an adequate defense. It was not disputed that Le was an educated, capable graduate student who had several days to prepare his defense, and the opportunity to consult both legal and nonlegal counsel, with an additional period to provide written supplements. The District Court did not improperly find facts: it permitted Le every reasonable inference, but concluded that undisputed facts showed Le to have a reasonable opportunity to present a defense.
With regard to the argument that the University did not consider Le’s defenses, there is no evidence that the Hearing Body and deans who heard Le’s disciplinary case did not consider his arguments. In fact, there is very substantial evidence that the opposite occurred. Mere speculation that Le’s arguments were not considered does not create a genuine issue of material fact. See Lexington Ins. Co. v. Western Pennsylvania Hosp., 423 F.3d 318, 333 (3d Cir.2005).
B. Did the University Provide Le Adequate Process?
The next group of claimed errors challenge the District Court’s determination that Le received adequate procedural protections during the disciplinary proceedings. Le argues that the District Court erred in relying on Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir.1961) and Sill v. Pennsylvania State University, 462 F.2d 463 (3d Cir.1972), since they antedated the Supreme Court’s decision in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
Le’s arguments are unavailing. The Due Process Clause protects students during disciplinary hearings at public institutions. Sill, 462 F.2d at 469. There is not a specific format that these proceedings have to follow, so long as the university provides sufficient protections to comply with due process. Id. Even assuming it was error for the District Court to have not explicitly applied the Mathews balancing test, application of the test does not aid Le. The test requires examining 1) the *175private interest, 2) the risk of erroneous deprivation of such interest, and 3) the government’s interest. Mathews, 424 U.S. at 335, 96 S.Ct. 893. Le’s interest, avoidance of being expelled from a professional school for academic dishonesty, is certainly weighty, but it is the only factor that favors him.
The risk of erroneous deprivation is low.Le was afforded extensive procedural protections: notice, a hearing before a panel of students and faculty, the right to present witnesses and evidence, the right to cross examine witnesses, a lay adviser in the room, an attorney outside the hearing room, two levels of appeal (during one of which he was represented by counsel), and the opportunity to submit further evidence after the hearing. Le argues that the notice was insufficient because he was not advised that evidence would be presented against him regarding other incidents. However, Le was aware of rumors regarding other incidents of cheating. Such evidence also served to rebut his defense that a back problem caused his unusual movements. In addition, there was a period of at least four days between the two days of the hearing to develop a response to these allegations. He was permitted to submit further material after the hearing. Thus, the risk of erroneous deprivation was extremely low.
Lastly, the dental school’s interest in prompt disposition of the charges weighs heavily against Le. Postponement of the disciplinary proceedings would likely have resulted in a delay of several months, given that the incident occurred at the end of the spring term and numerous students and faculty members would very likely not have been readily available during the summer period.
Le argues that the failure to follow the university policies regarding the reporting of dishonest behavior was a violation of due process. He particularly notes that the testimony of Dr. Zohn observing prior instances of cheating without reporting them was the “most glaring example of unfairness,” which is peculiar as Zohn was a witness called by Le. A school’s failure to follow its own policies is not, in itself, a violation of due process. See Winnick v. Manning, 460 F.2d 545, 550 (2d Cir.1972) (“[W]e are not inclined to hold that every deviation from a university’s regulations constitutes a deprivation of due process.”); Cobb v. Rector, Visitors of the University of Virginia, 69 F.Supp.2d 815, 828-29 (W.D.Va.1999). So long as the procedural protections actually provided were sufficient and fairly administered, due process is satisfied.
C. Was the University’s Decision Supported by Substantial Evidence?
Le argues that due process requires that the University’s determination be supported by substantial evidence and that the District Court erred by not considering evidence in the record that supports Le’s position. The substantial evidence standard requires such evidence “as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). This standard must be applied when viewing the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
The District Court did not err in applying this standard. Sufficient evidence was presented during the hearing to support a reasonable conclusion that Le cheated. Conte presented what the Hearing Body found to be credible evidence of suspicious movements. This was corroborated by a substantial number of students presenting evidence of a pattern of behavior on Le’s part. A reasonable factfinder could have *176discredited Le’s defense that his actions were caused by back problems. The Hearing Body observed him sitting for two separate days without moving suspiciously. Conte testified that the suspicious behavior stopped when he warned the test-takers about cheating. Thus, the expulsion was backed by substantial evidence.
D. Was Le Entitled to Discovery before the District Court Granted the Summary Judgment Motion?
Lastly, Le argues that the District Court improperly converted the motion to dismiss to a motion for summary judgment, thus depriving him of the opportunity to conduct discovery. Federal Rule of Civil Procedure 12(d) requires that if matters outside the pleading are presented to the court and not excluded, the court must treat the motion to dismiss as a motion for summary judgment, provided that the court gives the parties a reasonable opportunity to present pertinent material. Fed. R.Civ.P. 12(d). When reviewing a district court’s decision to convert the motion, we review three issues 1) whether the materials submitted required conversion, 2) whether the parties had adequate notice of an intention to convert the motion, and 3) if the parties did not have notice, whether the failure to provide notice was harmless error. In re Rockefeller Ctr. Prop., Inc. Secs. Litig., 184 F.3d 280, 287 (3d Cir.1999).
First, the material submitted required conversion. The defendants submitted several exhibits consisting of school policies, disciplinary decisions against Le, and hearing testimony that made the motion an appropriate candidate for conversion to a motion for summary judgment.
Second, the District Court gave sufficient notice and an opportunity to submit relevant material. This court has required that at least ten days notice be given before conversion of a Rule 12(b)(6) motion. Crown Central Petroleum v. Waldman, 634 F.2d 127, 129 (3d Cir.1980). The District Court gave the defendants approximately twenty days to submit materials. It gave Le an additional seventeen days to submit material in response. Thus, the District Court gave proper notice in converting the motion to a motion for summary judgment.
Le was not improperly denied discovery. We review the District Court’s denial of discovery for abuse of discretion. Alston v. Parker, 363 F.3d 229, 236 (3d Cir.2004). Le argues that discovery would have allowed him to delve into why the university chose to conduct the hearing the way it did. However, such information would not have been pertinent: the issue to be explored was whether the procedure that was afforded comported with due process. Sill, 462 F.2d at 469. The District Court followed the proper standards in converting the motion to dismiss to a motion for summary judgment and did not abuse its discretion in denying discovery.
III.
For the foregoing reasons, we will affirm the order of the District Court granting summary judgment in favor of the defendants. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479748/ | *205OPINION
MICHEL, Circuit Judge.
This appeal comes from the Board of Immigration Appeals (the “Board”). Xi-uming Jiang (“Jiang”) has filed a petition for review of the decision of the Board to dismiss her appeal from the decision of the Immigration Judge (“IJ”) denying her a reopening of her application for asylum on the basis of changed country conditions and new facts and evidence that were previously unavailable to her at the time of her initial hearing. For the reasons set forth below, we will grant Jiang’s petition for review of the Board’s decision and remand the case.
I.
Jiang is a citizen of the People’s Republic of China (“China”) and a native of Lian-jiang County in the Fujian Province of China. She left China and arrived in the United States on September 19, 2000. On March 15, 2001, she filed an initial application for asylum alleging a well-founded fear of persecution based upon her cohabiting boyfriend’s practice of Falun Gong. However, before a hearing on the merits could be held, Jiang withdrew her application and, on June 19, 2001, the IJ ordered her removed to China. Jiang waived appeal of the Id’s decision; however, she remained in the United States. She subsequently met and married JianZhong Huang; the couple first married in a traditional Chinese ceremony on December 9, 2003 and registered their marriage on August 2, 2005. Jiang later gave birth to two daughters, born on April 19, 2004 and February 6, 2008.
On September 19, 2007, Jiang filed a motion to reopen and a request to file a successive asylum application. Jiang’s motion was based upon her alleged fear of forced sterilization if she were to return to China for her alleged violations of China’s family planning policies. In the affidavit accompanying her motion, Jiang averred that she learned, through telephone contacts with her friends and relatives in China, that the local government of the town to which she would be returned had substantially increased the use of forced abortions and sterilizations. Moreover, according to Jiang, people who resist the Population and Family Planning Law (“PFPL”) face criminal prosecution as well. Jiang further averred that she learned of individuals in her home village who had been forcibly sterilized after giving birth to a second child. Jiang testified that she believed that, should she be removed to China with her family, her children will be registered as Chinese citizens and that, because she will not be classified as a “Returned Overseas Chinese,” she will consequently face forcible sterilization.1
Jiang also proffered the affidavit of a friend, XiuYing Huang (“Huang”), who is a citizen of China currently living in Jiang’s hometown. In her affidavit, Huang stated that she was forcibly sterilized in 2006 after the birth of her second child. Huang also stated that a fellow villager, Yue Ying Pan, was forced to undergo an abortion after she became pregnant a second time, and that such occurrences are “very common” in her hometown. Like Jiang, Huang also averred that people who resist the PFPL face criminal prosecution. Huang also testified that she consulted the local village committee and that the committee informed her that enforcement of *206the PFPL is very strict and unequivocal: women who give birth to a single child are required to have an IUD inserted and women who give birth a second time are targeted for forcible sterilization. Jiang also included an official letter she received from the Village Committee of Lantian Village (the “Village Committee letter”).2 This communication, addressed directly to Jiang,3 confirms the information in Jiang’s and Huang’ affidavits, viz., that women who give birth to a single child are required to have an IUD inserted and women who give birth a second time are targeted for sterilization. The letter mirrors the affidavits of Jiang and Huang, and informs Jiang that, should she return to China, her children will be registered as Chinese citizens and that, because she will not be classified as an “Overseas Chinese,” she will be required to undergo the same family planning procedure as all local residents.
On November 1, 2007, the IJ denied Jiang’s petition to reopen. The IJ found that, because the motion was filed over six years after the IJ ordered her removal, Jiang would have to establish an exception to the 90-day time limit in which to file a motion to reopen; otherwise her motion would be time-barred. See 8 C.F.R. § 1003.2(c)(2). The IJ held that Jiang failed to establish such an exception to the time limit and denied her motion to reopen her application for asylum. In denying her motion to reopen, the IJ noted that the Board had previously held that a Chinese citizen who had been denied asylum in the United States and who had since given birth to a second child faced a “heavy burden” in supporting a motion to reopen a petition for asylum based upon changed country conditions. In re S-Y-G-, 24 I. & N. Dec. 247, 251 (B.I.A. August 2, 2007). The IJ held that Jiang had experienced a change in “personal circumstances” rather than á change of circumstances “arising in the country of nationality,” and that the former was insufficient to create an exception to the 90-day time limit. The IJ further held that, personal circumstances notwithstanding, Jiang had failed to meet her “heavy burden” because she failed to establish that: “ ‘(1) a relevant [i.e., material] change in country conditions occurred, (2) the applicant has violated family planning policy as established in that alien’s local province, municipality, or other relevant area, and (3) the violation would be punished in a way that would give rise to a well-founded fear of persecution.’ ” In the matter of Jiang, File No. A 77 322 643, at 3 (Immigration Court November 28, 2008) (quoting S-Y-G- 24 I. & N. Dec. at 251). The IJ based his holding on a review of Jiang’s affidavit, the affidavit of Huang, the State Department’s 2005 and 2006 Country Conditions Report, and various documents from the Chinese government and the media, including the letter from the Lantian Village Committee.
Jiang appealed and, on November 28, 2008, the Board affirmed the IJ’s denial of the motion to reopen. The Board found that Jiang’s affidavit was not persuasive because she “ha[d] no personal knowledge of the information she obtained from a friend concerning recent activities by family-planning officials in her native village in Fujian Province and their awareness of her United States citizen children.” The Board also found that “her friend’s affidavit also does not warrant reopening because it does not indicate whether she or *207the villagers who were allegedly forcibly sterilized were parents of children born outside of China.” Consequently, the Board held that Jiang’s motion to reopen her petition for asylum was time-barred under 8 C.F.R. § 1003.2(c)(2) and that she had failed to demonstrate prima facie eligibility for the relief sought, as required to warrant an exception based on changed country conditions. This appeal timely followed.
II.
The scope of our review of the Board’s order denying Jiang’s motion to reopen her petition for asylum is quite limited. See INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). We review the Board’s denial of a motion to reopen for an abuse of discretion. See Liu v. Attorney General, 555 F.3d 145, 148 (3d Cir.2009). Similarly, we uphold the Board’s factual determinations if they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (internal citations and quotations omitted). We reject the Board’s findings only if “any reasonable adjudicator would be compelled to conclude to the contrary.” Liu, 555 F.3d at 148; 8 U.S.C. § 1252(b)(4)(B).
Under Third Circuit law, there are both procedural and substantive hurdles that must be overcome in a motion to reopen removal proceedings. Shardar v. Attorney General of U.S., 503 F.3d 308, 313 (3d Cir.2007). Under the governing regulations, “an alien may file only one motion to reopen removal proceedings ... and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered.” 8 C.F.R. § 1003.2(c)(2). However, the “time and numerical limitations ... shall not apply” to motions to reopen that “apply or reapply for asylum or withholding of deportation 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.” Id. Therefore, if the asylum applicant presents material evidence of changed country conditions that could not have been presented during the hearing before the IJ, his motion can be considered, even if there has been a prior motion to reopen or the motion is beyond the 90-day time limit for filing. See Filja v. Gonzales, 447 F.3d 241, 251-54 (3d Cir.2006).
With regard to the substantive hurdle, “[a]s a general rule, motions to reopen are granted only under compelling circumstances.” Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir.2004). The Board has held that, in exercising its discretion to reopen proceedings, “we have been willing to reopen where the new facts alleged, when coupled with the facts already of record, satisfy us that it would be worthwhile to develop the issues further at a plenary hearing on reopening.” In re L-O-G-, 21 I. & N. Dec. 413, 419 (B.I.A. June 14, 1996) (internal quotation marks and citation omitted). As noted, “[a] motion to reopen must establish prima facie eligibility for [the relief sought].” Guo, 386 F.3d at 563. In order to make a prima facie case, the applicant must “ ‘produce objective evidence showing a “reasonable likelihood” that he can establish [that he is entitled to relief].’ ” Id. (quoting Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir.2002)) (alteration in original). For an asylum claim, this “means merely showing a realistic chance that the petitioner can at a later time establish that asylum should be granted.” Id. at 564 (internal quotation marks and citation omitted). Facts presented in the motion to reopen are “accepted as true *208unless inherently unbelievable.” Shardar, 503 F.3d at 313 (quoting Bhasin v. Gonzales, 423 F.3d 977, 987 (9th Cir.2005)). That said, the regulations provide that “[t]he Board has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief.” 8 C.F.R. § 1003.2(a). But although the Board has discretion to deny a motion to reopen notwithstanding a prima facie showing, when it denies a motion to reopen on that ground, we review that denial to ensure that it is supported by substantial evidence and is not an abuse of discretion. Sevoian, 290 F.3d at 174.
III.
Jiang argues that the Board, in concluding that she had not met her burden of proof, erred in attaching minimal weight to her affidavit, the affidavit of Huang, and the official notice from the Village Committee of Lantian Village. Specifically, the Board found Jiang’s affidavit “unpersuasive because she has no personal knowledge of the information she has obtained from a friend concerning recent family-planning officials in her native village in Fujian Province and their awareness of her United States citizen children.” In re Xiuming Jiang, File No. A077 322 643, at 2 (B.I.A. November 28, 2008) In addition, the Board also found that “her friend’s affidavit also does not warrant reopening because it does not indicate whether she or the villagers who were allegedly forcibly sterilized were parents of children born outside of China, like the respondent.” Id. Jiang argues that the Board erred in failing to attach sufficient weight to these documents, which she contends are highly probative of her claim that either she or her Chinese-citizen husband will be forcibly sterilized upon their return to China. The government argues that Jiang’s fear of forcible sterilization upon her return is “purely speculative” and that she cannot make a prima facie case that she is eligible for asylum. The government maintains that the Board correctly relied upon its prior evaluation of evidence of alleged Chinese coercive measures from its previous holdings in In re S-Y-G-, 24 I. & N. Dec. 247 (B.I.A. Aug. 2, 2007); In re J-W-S-, 24 I. & N. Dec. 185 (B.I.A. June 7, 2007), and In re C-C-, 23 I. & N. Dec. 899 (B.I.A. March 23, 2006). Based upon the analyses contained in these prior cases, the government contends, the Board concluded that Jiang had not established an objectively reasonable fear of forced sterilization based upon the birth of two U.S. citizen children. Specifically, the Board found in those cases that, although there was some evidence of incidences of forced sterilization, there was no evidence of a uniform policy of forcible sterilization within the petitioner’s home region.
Consequently, the government argues, given the evidence presented, it was reasonable for the Board to determine that Jiang failed to establish that she will be singled out for prosecution. The government dismisses Jiang’s evidence as “anecdotal,” and argues that there is no credible evidence that forced sterilizations are mandated in Fujian Province after the birth of a second child. Finally, the government argues that Jiang adduces no evidence to support her claim that individuals in her position, viz., Chinese citizens lacking an “Overseas Chinese” classification and returning to China with two foreign-born children, are likely to be targeted for forcible sterilization.
The government’s argument might be more persuasive were it not for the official, personalized communication sent to Jiang from the Village Committee of her home town. That letter states in no uncertain terms that, as a returning Chinese citizen lacking an “Overseas Chinese” classifica*209tion and with two foreign-born children (who would necessarily be registered as Chinese citizens), Jiang would be a target for forced sterilization. This communication corresponds precisely with the affidavits of Jiang and Huang. Because the Third Circuit requires that “[fjacts presented in the motion to reopen are accepted as true unless inherently unbelievable,” the Board is required to accept the local Chinese government’s assertion as true. Shardar, 503 F.3d at 313 (internal quotation marks and citations omitted).
The translated letter, worth reproducing in its entirety, states:
Villager Xiuming Jiang:
In regard to your inquiry about the specific regulations of China’s Population and Family Planning Law in our village, we now reply as follows:
Family planning is one of the most fundamental, crucial national policies of the People’s Republic of China. Our village strictly implements the Regulations of Population and Family Planning of Fuji-an Province; any citizen of China who gives birth to one child will be the target for IUD insertion; citizens with two children will be targets for sterilization. Since you have no legal status in the United States, you are still a eitizen of China, not classified as an “oversea [sic] Chinese.” Pursuant to Article 5 of the Nationality Law of the People’s Republic of China, once you come back to China, your US-born children will be registered as Chinese citizen [sic] and you will be required to undergo the same family planning procedure as all local residents.
Hereby notify.
Village Committee of Lantian Village
The Board’s conclusion that the Village Committee letter was of “little evidentiary weight” because it “does not demonstrate a reasonable likelihood that [Jiang] would be forcibly sterilized or face any other sanctions amounting to persecution or torture if she did not voluntarily submit to that procedure” is scarcely credible. Jiang, File No. A077 322 643, at 2. The letter, addressed specifically to Jiang, states (1) that mothers having given birth to two children will be targets for sterilization, (2) that, upon her return, Jiang’s two children would be registered as Chinese citizens for the purposes of the PFPL, and (3) that Jiang would be required to undergo the “same family planning procedure.” One need not be particularly acute to complete the syllogism and reason that Jiang would therefore be a “target[ ] for sterilization.”
Moreover, although the Board discounted the Village Committee letter because it was a photocopy, it did not indicate that it questioned the authenticity of the letter, nor did it suggest that it had any grounds to do so. Consequently, the Board’s affording of little evidentiary weight to the Village Committee letter, and the affidavits of Jiang and Huang which reflect the contents of that letter, amounts to an abuse of discretion.
The government argues that the 2006 U.S. State Department’s relevant country condition report did not include Fujian Province among those requiring termination of pregnancy if the pregnancy violates provincial family planning regulations, and points out that violators of the PFPL could face only economic threats including “social compensation fees.” However, the Village Committee letter plainly states that family planning laws will be strictly enforced, including required sterilization. If true, and the Board is required to accept this evidence as true, then there was prima facie evidence that there has been a change in country condi*210tions in the locality to which Jiang will be repatriated.
Finally, Jiang submitted a wealth of documentary evidence that the Board failed to address or summarily dismissed as “cumulative and duplicative of ... our recently published decisions,” describing similar enforcement of the People’s Republic of China’s PFPL. For example, a 2003 Administrative Decision of the Department of Family-Planning administration of Fujian Province states that Chinese citizens living in the United States without permanent resident status there who give birth to children born in the U.S. are subject to the same family-planning laws as Chinese citizens living in China, and are subject to those laws upon their return to Fujian Province. Although this and other similar documents do not, by themselves, necessarily describe the situation in Jiang’s own village, they provide a context in which to place the highly personalized and specific statements of the Village Committee letter.
IV.
Jiang has made a prima facie case of changed country conditions insofar as she has produced cumulative, consistent, and personalized objective evidence demonstrating a reasonable likelihood that she is entitled to relief. By ignoring or dismissing the evidence of changed country conditions and Jiang’s well-founded fear of forcible sterilization should she return to China, the Board abused its discretion in denying her petition to reopen. Consequently we will grant Jiang’s petition for review of the Board’s denial of her motion to reopen and will remand the case to the Board for further proceedings consistent with this opinion.
. To qualify as a "Returned Overseas Chinese", Jiang claims that she would have to be either a citizen or Permanent Resident of the United States.
. Jiang's home village, to which she would be repatriated by the Government of the People's Republic of China subsequent to her removal from the United States.
. The letter is addressed to “Villager Xiuming Jiang” and was obtained by Jiang's mother living in Lantian Village, who approached the Village Committee directly. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479750/ | OPINION
PER CURIAM.
Ailin Jiang, a native and citizen of the People’s Republic of China, seeks review of a final order of removal entered by Board of Immigration Appeals (“BIA”). We will deny the petition for review.
I.
Jiang, currently age thirty-five, entered the United States in February 2005 without being admitted or paroled. He was placed in removal proceedings shortly thereafter, at which time he conceded re-movability under INA § 212(a)(6)(A)(i). He applied for asylum, withholding of removal, and Convention Against Torture (“CAT”) relief. At a hearing before the Immigration Judge (“IJ”) in 2006, Jiang testified that he married in China and has one child (a son). Shortly after his son was born in 1997, his wife received a forced IUD. In 2002, the couple hired a private doctor to remove the IUD so that they could have more children. After the IUD was removed, the couple went into hiding at a cousin’s home while Jiang worked nearby. In 2003, Jiang’s wife became pregnant and tried to hide that fact *225by staying indoors. The pregnancy was discovered by family planning officials, a forced abortion was performed at a hospital, and a new IUD was inserted. Jiang’s home village family planning office fined him 8,000 yuan, which he paid in full in two installments. Jiang left for the United States shortly thereafter, with his family remaining in China.
On March 14, 2006, the IJ rejected Jiang’s credibility and denied relief. The BIA sustained Jiang’s appeal and remanded the matter for further proceedings, holding that the adverse credibility determination was “largely based on improper speculation” and failed to comport with controlling precedent.
Upon remand, the IJ scheduled a new hearing. At that hearing, Jiang elected to “rest on the record” from the 2006 hearing and offered no additional testimony. The IJ denied the applications for relief on the merits. Accepting Jiang’s credibility, the IJ held that he failed to establish a claim for asylum based on “other resistance” to China’s population control program. The IJ found that payment of the fine did not rise to the level of persecution, that the act of hiding at the cousin’s home did not warrant relief, and that Jiang personally faced no threat of sterilization or persecution in China.
The BIA dismissed Jiang’s appeal. It agreed with the IJ that payment of the fine and the act of hiding from officials so that Jiang and his wife could have another child do not rise to the level of past persecution, and do not establish a well-founded fear of future persecution, particularly in the absence of evidence that authorities are seeking out Jiang. The BIA thus denied asylum, and it affirmed the denials of withholding of removal and CAT relief. Jiang timely filed a petition for review in this Court.
II.
We have jurisdiction under 8 U.S.C. § 1252(a)(1).1 “[Wjhen 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 agency factual findings regarding asylum and withholding of removal under the deferential substantial evidence standard, which asks that those findings be supported by “reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (citing 8 U.S.C. § 1105a(a)(4)); see Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir.2005). Such findings are deemed “ ‘conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Chen, 376 F.3d at 222 (quoting 8 U.S.C. § 1252(b)(4)(B)).
To establish eligibility for asylum, Jiang must show past persecution or a well-founded fear of future persecution on account of, inter alia, political opinion. See Vente v. Gonzales, 415 F.3d 296, 300 (3d Cir.2005). Here, the record does not compel a finding of eligibility for asylum. Jiang cannot claim “other resistance” based on his wife’s subjugation to family planning policy, see Lin-Zheng v. Att’y Gen., 557 F.3d 147, 156 (3d Cir.2009) (en banc), and thus Jiang’s claim for relief turns, as the BIA recognized, on the 8,000 *226yuan fine and the fact that he hid for a time at his cousin’s home.
While “deliberate imposition of severe economic disadvantage which threatens a petitioner’s life or freedom may constitute persecution,” Li v. Att’y Gen., 400 F.3d 157, 168 (3d Cir.2005), the 8,000 yuan fíne imposed upon Jiang does not meet this standard. Jiang paid the fine in two installments over a short period of time, and a review of the record reveals no evidence at all that the fine imposed a severe economic disadvantage amounting to persecution. See id. (“Such disadvantage might, for instance, involve the deprivation of liberty, food, housing, employment, and other essentials of life.”). Jiang essentially concedes that he failed to show hardship resulting from the fine, but he argues that it was the IJ who erred by failing to ask “more questions” of Jiang to create a record on the issue. As the BIA correctly noted, however, Jiang’s counsel chose not to offer additional testimony after the matter was remanded for further proceedings. Because Jiang had ample opportunity to create a record regarding economic persecution, we cannot fault the IJ for Jiang’s failure to do so. Finally, the record does not compel the conclusion that Jiang’s act of hiding with his wife for a short time amounted to a form of “other resistance” under 8 U.S.C. § 1101(a)(42)(B), or, in any event, that Jiang suffered any harm rising to the level of persecution as a result of his hiding.
Where past persecution is not established, an alien can demonstrate a well-founded fear of future persecution by showing that he has a “genuine fear,” and that a “reasonable person in [his] circumstances would fear persecution if returned to [his] native country.” Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir.2003). The BIA correctly noted that there is no evidence of record that Chinese authorities have an interest in Jiang, or that Jiang has a well-founded fear based on his purported resistance to family planning policies. We conclude that the asylum claim was properly denied.
“[A]n applicant who cannot meet the standard for asylum will necessarily be unable to meet the standard for withholding of removal.” Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 348-49 (3d Cir.2008). Because Jiang has not shown past persecution or a well-founded fear of future persecution, he cannot meet the higher standard for withholding of removal. See id.
III.
For the foregoing reasons, we will deny the petition for review.
. Because Jiang makes only passing mention of the CAT claim in his opening brief, and does not set forth argument on the issue, we deem the CAT claim waived. See Lie v. Ashcroft, 396 F.3d 530, 532 n. 1 (3d Cir.2005). Accordingly, we limit our analysis to asylum and withholding of removal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479751/ | *230OPINION
PER CURIAM.
Noelly Nicolas petitions for review of an order of the Board of Immigration Appeals (“BIA”), which dismissed her appeal from , an Immigration Judge’s (“IJ”) final removal order. We will deny the petition for review.
I.
Nicolas is a native and citizen of Haiti. She came to the United States in October 2007 with a transit visa, but she did not have a ticket or money to go on to her intended destination, Brazil. When questioned, she asserted that she had a fear of returning to Haiti, and she was placed in immigration proceedings. She was charged with being removable for seeking entry through fraud or misrepresenting a material fact, and for not being in possession of a valid immigrant visa.1 She applied for asylum, withholding of removal and. protection under the Convention Against Torture (“CAT”).
Nicolas sought relief based on an incident that occurred in October 2005 when she was sixteen years old. She was walking to a friend’s home to spend the weekend, when she was abducted by five armed, masked men, and was forced into a car. They blindfolded her and tied her hands together and took her to an unknown location where she was kept for two and a half days. She was pushed, kicked and beaten because she refused to do what they wanted. They beat her with lamps, arms and feet, and burned her with a plastic object on her arm. She still retains a scar from the burn. On the third day, they put her back in the car, drove for a little time, and pushed her out of the car. They told her if she told anyone they would find her and harm her again. She walked home and told her mother that she was burned when she was cooking with her friend. Her mother took her to a hospital where she was treated and released. She lied to her mother because she did not want her mother to report the incident to the police or share the information with other people. She did not report the incident to the police, because she believed the police are involved in kidnapping.
Nicolas testified that she believed she was kidnapped because she was “a defenseless little girl,” and because some people “are frustrated that ... they cannot enjoy the opportunity that some people do.” A.R. 122-23. She was also aware of two other young female students who had been kidnapped. A.R. 123-24. Her asylum application noted that she sought relief as a member of a particular social group; as a “student[ ] and young girl[ ].” A.R. 229.
The IJ found that Nicolas testified credibly, but denied relief because she had “not established that she was abducted on account of at least one of the central reasons enumerated in the Act.” A.R. 66. The IJ found that Nicolas had been a victim of crime, and that “there are widespread kidnappings of citizen [sic] of all societal strata by armed and organized criminal elements in Haiti ... and one particular group is not targeted over another group.” A.R. 68. The IJ therefore denied Nicolas asylum and withholding of removal. The IJ also found that Nicolas had failed to show that she had been tortured in the past or would likely suffer torture in the future. A.R. 70.
The BIA agreed that the record did not support a conclusion that kidnappings in Haiti focused on any particular group, “let alone a particular social group made up of *231young female students.” A.R. 4. The BIA affirmed the IJ’s finding “that the respondent did not prove that her membership in a particular social group was or will be at least one central reason for the persecution.” Id. The BIA also found her ineligible for relief under the CAT, as she had “not shown that anyone in the Haitian government would affirmatively consent or acquiesce to her torture....” Id. Nicolas filed a timely petition for review.
II.
We have jurisdiction over this petition for review under 8 U.S.C. § 1252. Where, as here, the BIA adopted some of the findings of the IJ and made additional findings, we review the decisions of both the BIA and the IJ. Gomez-Zuluaga v. Attorney General 527 F.3d 330, 339 (3d Cir.2008). To be granted asylum as a refugee, an applicant must establish that she is unable or unwilling to return to her homeland “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). To be entitled to withholding of removal, an applicant must prove that her “life or freedom would be threatened in that country because of [her] race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3). Thus, to be eligible for asylum or withholding of removal, it is not enough for Nicolas to show that she suffered persecution in the past; she would also need to show “that the persecution was on account of [her] ... membership in a particular social group.... ” Lukwago v. Ashcroft, 329 F.3d 157, 170 (3d Cir.2003). Pursuant to the REAL ID Act of 2005, the “applicant must establish that ... membership in a particular social group ... was or will be at least one central reason for persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i) [INA § 208(b)(1)(B)® ]. “[A]sylum may not be granted if a protected ground is only an incidental, tangential, or superficial reason for persecution of an asylum applicant.” Ndayshimiye v. Att’y Gen., 557 F.3d 124, 130 (3d Cir.2009) (internal quotation and citation omitted).
As noted, Nicolas argued that she was and would be persecuted because of her membership in the particular social group of young, female students. In Matter of Acosta, 19 I. & N. Dec. 211, 233 (B.I.A.1985), the BIA suggested that “sex” might be an innate characteristic that could link the members of a “particular social group.” But “[possession of broadly-based characteristics such as youth and gender will not by itself endow individuals with membership in a particular group.” Lukwago, 329 F.3d at 172. Further, it is not clear that Nicolas’s attackers were motivated by her gender, her youth, or her status as a student. See Niang v. Gonzales, 422 F.3d 1187, 1199-1200 (10th Cir.2005) (focus should not be on whether gender can constitute social group, but on whether “members of that group are sufficiently likely to be persecuted that one could say that they are persecuted ‘on account of their membership”); see also Gomez-Zuluaga, 527 F.3d at 345 n. 10 (“It is not necessary for us to determine whether this is a cognizable ‘particular social group’ under the statute, because there is substantial evidence in the record to conclude that [the perpetrator] was not motivated by Petitioner’s membership in a particular social group© ”). Indeed the evidence in the record showed that kidnappings were widespread in Haiti and not limited to young, female students.
Because substantial evidence supports the BIA’s conclusion that Nicolas did not meet her burden of showing that she suf*232fered persecution on account of a protected ground, we may not grant the petition with regards to Nicolas’s claims for asylum and withholding of removal. See Zubeda v. Ashcroft, 333 F.3d 463, 469-70 (3d Cir.2003) (alien who is unable to establish refugee status for the purpose of asylum will be unable to establish right to withholding of removal).
III.
The applicant for relief under the CAT bears the burden of proving that it is more likely than not that she would be tortured if removed to the proposed country of removal. 8 C.F.R. § 1208.16(c)(2); see also Kamara v. Att’y Gen., 420 F.3d 202, 212-13 (3d Cir.2005). For an act to constitute torture under the CAT, it must be: (1) an act causing severe physical or mental pain or suffering; (2) intentionally inflicted; (3) for a proscribed purpose; (4) by or at the instigation of or with the consent or acquiescence of a public official who has custody or control of the victim; and (5) not arising from lawful sanctions. Id. at 213; see also 8 C.F.R. § 1208.18(a)(1). The requirement that the torture be intentionally inflicted requires a showing that the “prospective torturer will have the goal or purpose of inflicting severe pain or suffering” on the petitioner. Pierre v. Att’y Gen., 528 F.3d 180, 190 (3d Cir.2008) (en banc). The “acquiescence of a public official” requirement does not require actual knowledge of torturous conduct, but can be satisfied by a showing that the government is willfully blind to the conduct in question or has breached its legal responsibility to prevent it. Silva-Rengifo v. Att’y Gen., 473 F.3d 58, 70 (3d Cir.2007); Gomez-Zuluaga, 527 F.3d at 350.
We agree with the BIA that Nicolas failed to show that she is likely to be tortured in Haiti. Although country reports indicate that kidnapping is widespread, there is no indication that anyone will kidnap Nicolas with the “specific intent” to torture her. If there is no evidence that the “prospective torturer will have the goal or purpose of inflicting severe pain or suffering,” the specific intent requirement of CAT is not fulfilled. Pieire, 528 F.3d at 190. This showing is required even when the conditions in the country of removal are such that removal is likely to result in harm to the petitioner. Id. at 191 (denying CAT relief where petitioner was likely to experience pain and suffering due to poor conditions in Haitian prisons, but failed to show that Haitian officials had the specific intent to inflict severe pain or suffering by placing him in detention upon removal). It appears that Nicolas was the victim of a random criminal act, and was not singled out for the specific purpose of being tortured.
For the foregoing reasons, we will deny the petition for review.
. She was eventually found removable only on the latter ground. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479753/ | OPINION
COWEN, Circuit Judge.
Feng Zhi Li (“Petitioner”), and her children, Zhen Hua Chen, Yu Fang Chen, and Zhu Yu Chen (as derivative beneficiaries), petition for review of an order of the Board of Immigration Appeals (“BIA”) denying a motion to reopen. For the foregoing reasons, this petition will be denied.
I.
Petitioner and her children, all natives of Fujian Province and citizens of the People’s Republic of China, were smuggled out of China in 2002. Petitioner was eventually placed in removal proceedings, and, in 2004, she requested asylum, withholding of removal, and relief under the United Nations Convention Against Torture (“CAT”) on behalf of herself and her children. Among other things, Petitioner claimed that her husband was forcibly sterilized in China and that she feared she would be forcibly sterilized for violating China’s one-child policy if she were forced to return to her native country.
Following an August 2, 2004 hearing at which she was represented by counsel, the Immigration Judge (“IJ”) denied the requested relief. The IJ initially found that removability was established by clear and convincing evidence in the record. Stating that she had “taken into account such factors as [Petitioner’s] demeanor, [as well as] the rationality and internal consistency and inherent persuasiveness of her testimony,” the IJ relied on a number of specific grounds to make an adverse credibility determination against Petitioner. (AR201.) The IJ further indicated that Petitioner’s impetus for coming to the United States “appears to be more economic than anything else” and agreed with the government’s attorney “that bringing her three children through to the United States through a smuggler is an extraordinarily dangerous process.” (AR205.) Finally, she determined that there was nothing to indicate that Petitioner would be subjected to torture in her home country.
Petitioner’s then-counsel appealed to the BIA, but this appeal was dismissed in a per curiam decision dated January 24, 2005. The BIA found that the testimony and documents in the record, “[e]ven if insufficient to support a sweeping adverse *237credibility finding under applicable Circuit law,” still provided the IJ “with legitimate reason to question the veracity of the [Petitioner’s] claim.” (AR300 (citation omitted).) The BIA specifically noted the existence of “discrepancies between the [Petitioner’s] testimony and supporting documents describing the circumstances surrounding the [Petitioner’s] husband’s alleged sterilization.” (Id. (citations omitted).) In turn, the materials submitted on appeal failed to address or provide a convincing explanation for the discrepancies. Stating that the IJ did not make a clearly erroneous finding, the BIA declined to set aside the IJ’s determination that Petitioner failed to satisfy the respective burdens of proof applicable to claims for asylum and withholding of removal. The BIA further held that Petitioner failed to identify any reversible error in the IJ’s conclusion that she failed to meet the burden for CAT relief. Finally, the BIA stated that Petitioner’s claim that the IJ abused her discretion by denying a continuance motion was without merit insofar' as the IJ herself conducted “a full and fair hearing,” the Petitioner “has not articulated or identified prejudice stemming from the [IJ’s] denial” or otherwise shown that the “outcome of her case would have been different had the motion been granted,” and the record on the whole supported the IJ’s resolution. (Id. (citation omitted))
No petition for review was filed with this Court with respect to the BIA’s January 24, 2005 decision. On June 7, 2006, Petitioner did file a counseled motion to reconsider with the BIA. In a per curiam decision dated August 21, 2006, the BIA dismissed this motion. It found the motion to be untimely, adding that there were no exceptional circumstances warranting sua sponte reconsideration on its part. According to the BIA, the motion “has been filed on the [Petitioner’s] behalf by the same attorney who represented [Petitioner] on appeal,” this attorney was served with a copy of the decision dismissing the administrative appeal on January 24, 2005, and he has nevertheless “offered no explanation for why he waited well over a year to assert error in our decision.” (AR284 (footnote omitted)). The BIA nevertheless went on to consider the IJ’s credibility determination again, stating that: “Under this [clearly erroneous] standard, which we are bound by the regulation to apply, although there may be isolated aspects of the Immigration Judge’s adverse credibility finding that we may not have relied upon if we were the fact-finding authority, we may not reverse it unless we are left with the definite and firm conviction that the ultimate conclusion is wrong.” (AR284 n. 1.) Petitioner obtained new counsel and filed a petition for review of the BIA’s April 21, 2006 decision on the grounds that her prior counsel was ineffective; this Court dismissed the petition on October 19, 2007 for lack of jurisdiction as ineffective assistance had not been raised below. See Li v. Attorney General, C.A. No. 06-4155.
On January 16, 2008, Petitioner, represented by her new attorney, filed a motion to reopen with the BIA. She claimed both changed country conditions as well as ineffective assistance of counsel. The BIA denied the motion to reopen on March 7, 2008. The BIA explained that Petitioner failed to demonstrate a change in country conditions. It then concluded that, while complying “with the procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988),” the Petitioner failed to demonstrate that her former counsel’s performance was deficient or otherwise resulted in prejudice. (AR16.) The BIA provided the following explanation:
.... We note that the [Petitioner’s] December 24, 2007, affidavit submitted *238with the present motion and filed with her disciplinary complaint attests that “the Chinese Birth Control officials had forced me to undergo sterilization while I was in China after giving birth to three children.” The affidavit makes no reference to her husband, and concludes with the statement that the affidavit “has been read back to me in the Mandarin dialect of Chinese which I am fluent in.” However, the respondent testified before the Immigration Judge that it was her husband who was sterilized rather than herself (Tr. 35-36), a fundamentally different factual claim that is also referenced elsewhere by counsel in her present motion papers.
(Id.)
Petitioner filed a counseled petition for review with the Court with respect to this BIA order denying the motion to reopen. She further moved for a stay of removal, but her motion was denied on September 18, 2008. Petitioner filed another stay motion, which, construed as a motion for reconsideration of the order denying her motion for stay, was likewise denied on January 27, 2009.
On April 4, 2008, Petitioner, through counsel, moved in the BIA for reconsideration of the agency’s reopening decision. The BIA denied this motion on May 2, 2008. It noted that Petitioner claimed in her Lozada affidavit that her former attorney did not pursue judicial review of the initial January 24, 2005 decision dismissing her administrative appeal because her relatives did not pay for his services. However, “[t]he affidavit also reflects that after the dismissal of the appeal, the lead respondent did not consult with the attorney for more than 4 months following our decision.” (AR3 (citation omitted).) The BIA stated that Petitioner failed to provide any evidence that, after the January 24, 2005 decision, either she or her relatives consulted with, entered into an agreement with, or had any contact with this attorney before the expiration of the filing deadlines for a reconsideration motion or a review petition. The BIA ultimately stood by its prior finding of a failure to demonstrate prejudice, adding that the “explanation for a factual error in the lead respondent’s affidavit pertaining to whether the lead respondent or her husband was sterilized in China would not alter our decision.” (Id.) Petitioner never filed a petition for review with respect to this May 2, 2008 reconsideration ruling by the BIA.
II.
Because Petitioner filed the requisite petition in a timely fashion, we have jurisdiction to review the BIA’s March 7, 2008 decision denying her motion to reopen. See, e.g., 8 U.S.C. § 1252. We, however, lack jurisdiction to review the BIA’s other decisions, respectively dated May 2, 2008, and January 24, 2005, because Petitioner failed to file a timely petition of review as to such rulings. See, e.g., id.; Stone v. INS, 514 U.S. 386, 405-06, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995). We likewise previously dismissed on jurisdictional grounds a petition to review the BIA’s August 21, 2006 decision.
This Court has indicated that “[a] claim of ineffective assistance of counsel in removal proceedings is cognizable under the Fifth Amendment — i.e., as a violation of that amendment’s guarantee of due process.” Fadiga v. Attorney General, 488 F.3d 142, 155 (3d Cir.2007) (citations omitted). An alien asserting a denial of due process “must show (1) that he was ‘prevented from reasonably presenting his case’ and (2) that ‘substantial prejudice’ resulted.” Id. (quoting Khan v. Attorney General, 448 F.3d 226, 236 (3d Cir.2006)). In general, the BIA’s denial of a motion to reopen is reviewed for an abuse of discre*239tion. See, e.g., id. at 153. But “we review de novo the Board’s determination of an underlying procedural due process claim.”1 Id. (citations omitted).
III.
Petitioner argues at some length that the BIA committed reversible error by failing to grant her motion to reopen pursuant to the theory of ineffective assistance of counsel. In particular, she claims that her previous attorney provided ineffective assistance before the IJ as well as before the BIA in the initial appellate proceeding challenging the IJ’s ruling against her. She further asserts that “prior counsel failed in his responsibility to communicate with Petitioners while they were in detention, subsequent to the dismissal of the original BIA appeal.” (Petitioner’s Brief at 23 (emphasis omitted).) Petitioner even argues that the manner in which ■ the BIA dealt with (or did not deal with) her various claims violated her right to due process under the Fifth Amendment. We conclude that the underlying motion to reopen was properly denied.2
We begin with the question of whether Petitioner’s lawyer provided ineffective assistance after the BIA’s January 24, 2005 dismissal of her appeal from the IJ’s initial decision denying asylum and related relief. In its subsequent May 2, 2008 decision, the BIA expressly addressed and rejected this claim. Petitioner, in turn, takes issue with the agency’s reasoning, stating, inter alia, that it placed “an unfair burden on Petitioners, who were uneducated, indigent, illiterate, and spoke no English, to contact their attorney, while they were in detention.” (Id. at 23 (emphasis omitted).) Nevertheless, as previously noted, we lack jurisdiction to review the May 2, 2008 decision because Petitioner failed to file a petition for review with respect to this subsequent order. In any case, even if this Court has jurisdiction (which it does not), we would still conclude that the BIA did not commit reversible error here due, among other things, to the lack of any evidence indicating that either Petitioner or her relatives (who were not otherwise detained and had retained and agreed to pay the attorney in the first place) had any contact whatsoever with the attorney in the time period between the BIA’s dismissal of the administrative appeal and the expiration of the deadlines for filing either a motion for reconsideration with the BIA or a petition for review with this Court.
We also agree with Petitioner that the BIA’s treatment of ineffectiveness in its March 7, 2008 decision was less than thorough. When examining a claim of ineffective assistance of counsel, the BIA “must at least show that it has reviewed the record and grasped the movant’s claims.” Filja v. Gonzales, 447 F.3d 241, 256 (3d Cir.2006) (citing Sevoian v. Ashcroft, 290 F.3d 166, 178 (3d Cir.2002)). In Filja, the BIA failed to meet its procedural review obligations by rejecting the petitioner’s ineffective assistance argument in a “formu*240laic statement that ‘we have carefully reviewed the record,’ ” followed by one paragraph in which its only substantive finding was that the petitioner “failed to demonstrate that his former counsel’s performance was so inadequate that it prejudiced the outcome of the proceedings.” Id. Because the BIA’s opinion contained no statements indicating it had in fact carefully reviewed the record, or grasped Filja’s claims, it was inadequate to survive appellate review. Id.; see also Kayembe v. Ashcroft, 334 F.3d 231, 238 (3d Cir. 2003) (“When deficiencies in the BIA’s decision make it impossible for us to meaningfully review its decision, we must vacate that decision and remand so that the BIA can further explain its reasoning.” (citation omitted)).
In its March 7, 2008 decision, the BIA similarly provided a curt, one-paragraph analysis of Petitioner’s ineffective assistance claims in this case. The BIA stated “the [Petitioner] ha[s] not adequately demonstrated that [her] former counsel’s performance was deficient or that [she] suffered any prejudice.” (AR16.) The BIA’s conclusion that Petitioner failed to demonstrate any deficiency in her prior counsel’s performance is a conclusory “formulaic statement” without further support demonstrating a review of Petitioner’s arguments or the record. If this were the sole basis for the BIA’s denial of the ineffective assistance claims, it would be inadequate under Fiíja and would necessitate remand. But this is not the only basis for the decision. The BIA also concluded that Petitioner failed to show prejudice. As support for this conclusion, the BIA noted the conflicting testimony in Petitioner’s affidavit in support of her motion to reopen as further reinforcement of the IJ’s adverse credibility determination. Specifically, in her affidavit, Petitioner averred that she had been forcibly sterilized while in China, which contradicted her prior statements that it was her husband who had been forcibly sterilized and that she herself feared forcible sterilization if she were returned to China. Because this inconsistency goes to the heart of Li’s claim, the BIA did not err when it held that Li failed to show prejudice.
IV.
We accordingly will deny the petition for review.
. The government argues that Petitioner possessed no rights to effective counsel in this civil immigration context and that her whole ineffectiveness theory accordingly must be rejected as a matter of law. Because we find that the BIA properly rejected this ineffectiveness theory on the substantive grounds that Petitioner failed to establish either deficient performance or prejudice, we need not (and do not) consider the government's broader argument at this time.
. Petitioner also unsuccessfully sought reopening on the basis of changed country conditions. She, however, has waived any "changed country conditions” argument by failing to raise this theory of relief in her brief. See, e.g., Nagle v. Alspach, 8 F.3d 141, 143 (3d Cir.1993). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479755/ | *273OPINION
SMITH, Circuit Judge.
Clyde Edinborough, a cocaine supplier, was convicted of possession with intent to distribute, in violation of 21 U.S.C. § 841. His conviction stemmed from a November 2003 seizure of cocaine at Miami International Airport. The cocaine was found in a bag arriving from Cyril E. King Airport, located in St. Thomas, U.S. Virgin Islands. At trial, the Government established that Edinborough contacted Danny Rawlins, a Cyril E. King Airport worker who eventually worked as an informant for authorities, in November of 2003, to place cocaine on a plane headed to Miami International Airport. At that time, Rawlins and other airport workers were surreptitiously moving drugs through Cyril E. King Airport for profit. In exchange for money, they would pack cocaine-filled bags onto airplanes for transport to the mainland United States.1
Edinborough raises seven challenges to his conviction.2 He argues that the District Court erred by (1) admitting into evidence the roller bag containing cocaine that was found on November 19, 2003, at Miami International Airport, (2) permitting hearsay testimony, (3) denying his motion for a mistrial based on Rawlins’s contradictory testimony, (4) denying his motion for a directed verdict of acquittal, and (5) denying him a new trial based on jury bias and juror misrepresentations during voir dire. On top of these alleged errors, Edinborough further argues that (6) Rawlins committed perjury and the Government engaged in prosecutorial misconduct, and (7) he was improperly sentenced.3 The arguments presented are meritless and we will affirm the District Court’s judgment.4
I.
Edinborough argues that the roller bag seized by authorities in Miami International Airport on November 19, 2003, was improperly admitted at trial because it did not match Rawlins’s description of the bag he gave to Mervin Dorival, the organizer of the cocaine trafficking ring at Cyril E. King Airport, for shipment to Miami. Rawlins testified that the cocaine was packed in a duffel bag when he gave it to Dorival for shipment to Miami, yet the bag seized by authorities in Miami was a roller bag. On Rawlins’s direct examination, the Government did not present *274the roller bag for his identification as the bag he gave to Dorival. Instead, the Government had Special Agent Hector Quinta-na of Immigration and Customs Enforcement, the agent who seized the bag in Miami, identify the roller bag. After the roller bag was identified by Special Agent Quintana, the District Court, over Edin-borough’s objection that the bag was not relevant, admitted the bag into evidence. Edinborough now argues that the roller bag was inadmissible because it was not relevant; it was not connected to him through testimony. See Fed.R.Evid. 402.5 In the alternative, he argues that the admission of the roller bag into evidence constituted a variance.6
Edinborough’s challenge to the admission of the roller bag fails. The bag met the low threshold for relevance because it, inter alia, contained cocaine, it was shipped from Cyril E. King Airport, and its existence corroborated Rawlins’s testimony that cocaine was shipped to Miami via Dorival. The Government’s decision to not have Rawlins identify the roller bag and Rawlins’s testimony that the cocaine was in a duffel bag go to the weight of Rawlins’s testimony and were not grounds for excluding the roller bag. Accordingly, we conclude that the District Court did not abuse its discretion by admitting the roller bag into evidence.
The variance argument also fails. A variance occurs “where the charging terms of the indictment are not changed but when the evidence at the trial proves facts materially different from those alleged in the indictment.” Daraio, 445 F.3d at 259. The indictment does not specify the type of bag used to ship the cocaine, so there was no variance from the indictment.
II.
Edinborough argues that Rawlins’s testimony about a tape-recorded conversation he had with Edinborough contained hearsay.7 Edinborough neither identifies the alleged hearsay statements nor provides an argument for why those statements are hearsay. Instead, his argument is based solely on the premise that the tape-recorded conversation itself was deemed hearsay by the District Court and not published to the jury. Based on the record before us, it appears that this premise is incorrect. While permitting the Government to question Rawlins regarding his conversation with Edinborough, the District Court referenced the publication of tape-recorded conversations to the jury. Even if the tape-recorded conversation was not published to the jury, Edinborough has not explained why Rawlins’s testimony contained hearsay. Thus, we reject his argument.
III.
Next, Edinborough argues that he should have been granted a mistrial based on Rawlins’s contradictory testimony during direct and redirect examination.8 On *275direct examination by the Government, Rawlins said he met with Edinborough twice: once during June or July of 2003 and again in November of 2003. On redirect examination, Rawlins testified that he met with Edinborough in June and July of 2003. The Government then asked Raw-lins if he met with Edinborough any other time and Rawlins testified that he met Edinborough a third time. At that point, the District Court held a side-bar with the Government and defense counsel. During that side-bar, Edinborough’s counsel pointed out that Rawlins’s testimony on redirect contradicted his testimony on direct. In response, the District Court invited Edin-borough’s counsel to challenge Rawlins’s credibility based on that contradiction. The District Court then issued a cautionary instruction to the jury instructing it to ignore Rawlins’s testimony that he met Edinborough a third time. Edinborough’s counsel moved for a mistrial, stating that the cautionary instruction was not enough to “unring the bell” with the jury. That motion was denied.
After the District Court issued the cautionary instruction, the Government proceeded with its questioning of Rawlins. Unfortunately for the Government, Raw-lins’s new testimony simply reiterated the contradiction identified by Edinborough’s counsel. Rawlins stated that he met with Edinborough twice and repeated that the second meeting was in July, instead of November. The District Court then held another side-bar, which it began by stating to the Government:
At the risk of impeaching your own witness, I think you have to clarify- — ... for the jury, for everybody, just what these months were. They were two. And you may recall to him what he said on direct, if you have to. But we’re not going to leave it like this. Edinborough’s counsel requested that the contradictory testimony be left as is. After some back and forth between Edinbor-ough’s counsel and the Government over whether it should be permitted to continue questioning Rawlins, the District Court ultimately let the contradictory testimony stand.
The District Court did not abuse its discretion in denying Edinborough’s motion for a mistrial. See Weaver, 267 F.3d 231, at 245. Its decision to let the contradictory testimony stand after permitting the Government one chance to cure the contradiction was a reasonable alternative to a mistrial. See Rivera, 384 F.3d at 56. Edinborough benefitted from the contradictory testimony because the contradictions undermined Rawlins’s credibility. Indeed, Edinborough’s counsel requested that the contradictory testimony be left as is and the District Court honored that request.
IV.
Edinborough also argues that Rawlins’s contradictory testimony constituted a variance in the Government’s evidence and required a judgment of acquittal. According to Edinborough, “there is no evidence of a drug transaction in November 2003 by the plain and clear testimony of Rawlins on redirect stating [that] the last transaction occurred in July 2003.” Edinborough’s argument fails to account for Rawlins’s testimony on direct examination that there was a November 2003 transaction and Special Agent Quintana’s testimony that he found drugs in a bag at Miami International Airport that had arrived from St. Thomas on November 19, 2003. Any contradiction in Rawlins’s testimony went towards his credibility and the probative value of his testimony. We see no *276indication of a variance and we reject Ed-inborough’s argument.9
V.
Edinborough argues that his trial was infected with jury misconduct and juror misrepresentations during voir dire. Six months after Edinborough’s conviction he moved for investigation into jury misconduct based on a letter submitted by an alternate juror, Linda Maratea. Maratea alleged that Feldere Webster-Lee, a member of the jury hearing Edinborough’s case, told her that Edinborough was a Prince Hall Mason, the Prince Hall Masons were out of control and needed to be stopped, and other Prince Hall Masons were prosecuted for a violent crime in the past but they were acquitted because they were Prince Hall Masons.10
The jury misconduct issued boiled down to Maratea’s word against Webster-Lee’s word, and the District Court did not find Maratea’s testimony credible. Webster-Lee’s testimony, on the other hand, was credited by the District Court. In light of the District Court’s diligent efforts in investigating the allegations of jury misconduct and its findings based on that investigation, we conclude that the District Court did not abuse its discretion in determining that there was no jury misconduct.
Edinborough’s claim that the District Court erred during voir dire likewise fails. This argument is based on Webster-Lee’s purported knowledge of Edinborough and bias against him. During the hearing investigating juror misconduct, Webster-Lee admitted that she knew Ed-inborough “by seeing him,” but she also testified that she had no opinion on his guilt during voir dire, she sought to answer every question during voir dire truthfully, and she accorded Edinborough the presumption of innocence.
“To receive a new trial because of errors during voir dire, [an individual] must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.” United States v. Hodge, 321 F.3d 429, 441 (3d Cir.2003) (internal quotation marks omitted). The Supreme Court has stated that voir dire is not easily subject to appellate review and we should hesitate before second-guessing a district court’s decisions regarding the impartiality of a juror:
Despite its importance, the adequacy of voir dire is not easily subject to appellate review. The trial judge’s function at this point in the trial is not unlike that of the jurors later on in the trial. Both must reach conclusions as to impartiality and credibility by relying on their own evaluations of demeanor evidence and of responses to questions. In neither instance can an appellate court easily second-guess the conclusions of the deci-sionmaker who heard and observed the witnesses.
Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981) (citations omitted).
*277Webster-Lee’s knowledge of Edinbor-ough, alone, would not have provided a valid basis for a challenge for cause. “[M]erely knowing one of the defendants does not, standing alone, constitute a sufficient showing of bias requiring excusal for cause.” United States v. Calabrese, 942 F.2d 218, 224 (3d Cir.1991). Moreover, the District Court, after questioning Webster-Lee, determined that she was not biased against Edinborough. Thus, Edin-borough’s voir dire challenge fails.
VI.
Edinborough accuses Rawlins of perjury and the Government of prosecutorial misconduct. We reject these accusations as unsupported by the record or legal authority.
Edinborough believes that contradictions between Rawlins’s testimony at Ed-inborough’s trial and his testimony at the later trial of Roy Brewley, an individual involved in the cocaine trafficking at Cyril E. King Airport, prove that Rawlins committed perjury at Edinborough’s trial:
(1) At Edinborough’s trial, Rawlins stated that in July of 2003, Edinborough gave him “four keys” of cocaine to ship. At Brewley’s trial, Rawlins said Edinborough just gave him books as a trial run.
(2) At Edinborough’s trial, Rawlins said he received $1000 for assisting in the July 2003 smuggling. At Brewley’s trial, Rawlins said he received $500.
(3) At Edinborough’s trial, Rawlins said he received $1000 from Edinborough for assisting in the November 2003 shipment. At Brewley’s trial, Raw-lins said he received $2000 from Ed-inborough.
To establish a due process violation premised upon the Government’s knowing use of perjured testimony, a defendant must show that (1) a Government witness committed perjury, (2) the Government knew or should have known of the perjury, (3) the perjured testimony went uncorrected, and (4) there is a reasonable likelihood that the false testimony could have affected the verdict. United States v. Hoffecker, 530 F.3d 137,183 (3d Cir.2008). A witness commits perjury if he “gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.” United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993).
Edinborough’s perjury claim fails. First, there is no evidence that Rawlins’s contradictory testimonies were the result of a willful intent to provide false testimony. See id. The contradictions could have arisen from Rawlins’s “faulty memory.” See id. Second, even assuming that Raw-lins was lying, there is no evidence that the Government knew he was lying at the time of Edinborough’s trial. See Hoffecker, 530 F.3d at 183. The contradictions in Raw-lins’s testimony were only evident after he testified in Brewley’s trial. Third, the contradictions identified are largely irrelevant to the allegations against Edinborough, and there is not a reasonable likelihood that the allegedly false testimony affected the verdict. See id. Edinborough was not charged with any crime for the July 2003 cocaine shipment; he was charged with only the November 2003 cocaine shipment. The single contradiction concerning the latter shipment was the amount of money that Rawlins received and that has no meaningful bearing on the verdict.
Edinborough also alleges that the Government engaged in prosecutorial misconduct. His claim amounts to mere editorializing and he provides no legal authority to support his argument. After reviewing the record, we conclude that the Govern-*278merit’s actions did not rise to the level of prosecutorial misconduct.
VII.
Finally, Edinborough challenges his 120 month sentence of imprisonment. He argues that the amount of cocaine he was found to have possessed for the purposes of sentencing was incorrect.11 He claims that the July and November 2003 shipments should not have been factored into his sentencing calculation because of deficiencies in the evidence proving that those shipments occurred. As a preliminary matter, we note that Edinborough did not submit a copy of the sentencing transcript for the record. Without that transcript we cannot conclusively evaluate his vague accusation that his sentence was based on clearly erroneous facts. Fed. R.App. P. 10(b)(2) (“If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant must include in the record a transcript of all evidence relevant to that finding or conclusion.”). Also, after reviewing the record, we reject Edinborough’s accusation that the evidence connecting him to the July and November 2003 shipments was deficient. As such, we reject his claim.12
VIII.
In conclusion, Edinborough’s claims of error are meritless and we will affirm the District Court’s judgment.
. Because we write only for the parties, we will presume knowledge of the record.
. Edinborough, citing Rule 28(i) of the Federal Rules of Appellate Procedure, also purports to adopt all issues raised within the trial and appellate briefs of his codefendants. Rule 28(i) provides that "[i]n a case involving more than one appellant ... any party may adopt by reference a part of another's brief.” Fed. R.App. P. 28(i). But it does not excuse compliance with Rule 28(a), which requires that the "appellant’s brief ... contain ... a statement of the issues presented for review[.J” Fed. R.App. P. 28(a)(5). Edinborough's blanket adoption of all the issues raised by his co-defendants, without any specification of the discrete issues to be adopted, does not satisfy Rule 28(a)(5)'s directive. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990) (rejecting attempt to adopt co-appellants' arguments by a cursory reference in brief). As such, we conclude that he has abandoned and waived these unspecified, adopted issues. Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.1993).
. In addition, Edinborough argues that the District Court erred by permitting the Government to read witness testimony during closing arguments and by unfairly favoring the Government during trial. After reviewing these claims and the record we conclude that they have no merit.
. The District Court had jurisdiction under 18 U.S.C. § 3231 and 48 U.S.C. § 1612(a). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
. “We review the District Court's evidentiary rulings for abuse of discretion.” United States v. Williams, 458 F.3d 312, 315 (3d Cir.2006).
. We exercise plenary review over properly preserved claims of variance. United States v. Daraio, 445 F.3d 253, 259 (3d Cir.2006).
. Whether testimony is hearsay is a question of law over which we exercise plenary review. United States v. Lopez, 340 F.3d 169, 175 (3d Cir.2003).
.We review the denial of a motion for a mistrial for an abuse of discretion. United States v. Weaver, 267 F.3d 231, 245 (3d Cir. 2001). “[A] mistrial must not be declared without prudent consideration of reasonable alternatives.” United States v. Rivera, 384 F.3d 49, 56 (3d Cir.2004).
. Edinborough also raises two related arguments, both of which fail. First, he claims that the duffel bag versus roller bag discrepancy was grounds for a judgment of acquittal. We disagree. Edinborough's argument pertains to fact-finding and does not justify a judgment of acquittal. Second, he argues that contradictory evidence regarding the amount of cocaine he gave to Rawlins for shipment constituted a variance in the indictment. After reviewing the record, we conclude that there was no variance.
. We review the District Court's consideration of jury misconduct allegations for an abuse of discretion. United States v. Boone, 458 F.3d 321, 326 (3d Cir.2006).
. We review factual findings pertaining to sentencing for clear error. United States v. Jimenez, 513 F.3d 62, 85 (3d Cir.2008).
. We also note that under any plausible sentencing guidelines calculation, Edinborough received a below-guidelines sentence. According to his PSR, he was responsible for 9 kilograms of cocaine and he acted as an organizer, resulting in an offense level of 34 and a guidelines range of 151 to 188 months. If his PSR was followed by the District Court, Edinborough received a sentence 31 months below the minimum recommended by the guidelines. If we look solely to his conviction, the five kilograms of cocaine for which he was convicted of possession with intent to distribute would give him an offense level of at least 32, which results in a guideline sentence of 121 to 151 months. U.S.S.G. § 2D 1.1 (c)(4) (establishing range of ”[a]t least 5 KG but less than 15 KG of Cocaine” as level 32). He received one month less than the minimum recommended sentence for the amount of cocaine he was convicted of possessing. Finally, even Edinborough's own sentencing guidelines calculation, provided in his written objections to the PSR, suggests a guidelines range of 121-151 months. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479757/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rory Mayberry and Robert Isakson appeal the district court’s order accepting the recommendation of the magistrate judge, granting the motion for Fed. R.Civ.P. 37 sanctions, dismissing this action with prejudice, and awarding reasonable expenses and fees to Defendants. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court in its opinion from the bench. Mayberry v. Battles, No. l:06-cv-00364-LO-TCB (E.D.Va. Oct. 10, 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/8479759/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Freddie Blackmon, Jr., appeals the district court’s order denying his 18 U.S.C. § 3582(c) (2006) motion. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Blackmon, No. 5:02-cr-00034-RLV-7 (W.D.N.C. Feb. 26, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479761/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher H. Gordon appeals the district court’s order dismissing his civil complaint for failure to state a claim. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Gordon v. Doniff, No. 8:08-cv-02802-RWT (D.Md. Sept. 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/8479763/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Peter G. Brooks appeals the district court’s order dismissing his civil action based on res judicata. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons 'stated by the district court. Brooks v. Triguero, No. 8:08-cv-03153-DKC (D.Md. July 10 & July 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/8479731/ | EBEL, Circuit Judge.
On September 17, 2009, this Court issued an “Order for Certification of Questions of State Law,” Lickteig v. Kolar, Jr., No. 08-2949 (8th Cir. Sept. 17, 2009) to the Supreme Court of the State of Minnesota certifying three questions of Minnesota state law to that Court. On May 27, 2010, the Minnesota Supreme Court issued an opinion answering those three questions. Lickteig v. Kolar, 782 N.W.2d 810 (Minn.2010).
On the basis of the answers provided by the Minnesota Supreme Court in this matter, the district court order this case is REVERSED and this matter is REMANDED to the U.S. District Court for the District of Minnesota for further proceedings consistent with our Order of Certification and the Supreme Court’s opinion answering the certified questions presented to it. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479733/ | ORDER
Appellant waives this appeal. It is therefore DISMISSED. The parties shall bear their own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479735/ | PER CURIAM:
John L. Badalamenti, appointed counsel for Robert Leslie Metz, has filed a motion to withdraw on appeal, supported by a brief prepared pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record reveals that counsel’s assessment of the relative merit of the appeal is correct. Because independent examination of the entire record reveals no issues of arguable merit, counsel’s motion to withdraw is GRANTED, and Metz’s convictions and sentences are AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479737/ | SUMMARY ORDER
Plaintiff Samuel Ernest Cartey appeals from the June 29, 2009 judgment of the District Court dismissing his complaint for lack of subject matter jurisdiction. On appeal, plaintiff argues that the District Court erred in concluding that the Teachers’ Retirement Sjrstem of the City of New York is exempt from the requirements of the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. We assume the parties’ familiarity with the facts and procedural history of this case.
We have reviewed plaintiffs claim and find it to be without merit. Substantially for the reasons stated by Magistrate Judge Douglas F. Eaton in his careful and thoughtful report and recommendation of March 18, 2009, see Cartey v. City Univ. of N.Y., No. 08 Civ. 1608 (S.D.N.Y. March 13, 2009), which the District Court adopted, see Cartey v. City Univ. of N.Y., No. 08 Civ. 1608 (S.D.N.Y. June 26, 2009), the June 29, 2009 judgment of the District Court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479745/ | OPINION
SMITH, Circuit Judge.
Bernard Gabriel was a baggage handler for Worldwide Flight Services at the Cyril E. King Airport on St. Thomas. He was charged in two counts of an 11-count superseding indictment for his involvement in a cocaine smuggling operation at the airport. Because we write only for the parties, we assume familiarity with that operation. Count One of the indictment charged Gabriel with conspiring to possess *196with intent to distribute five kilograms or more of cocaine, from a “time unknown and continuing to September[ ] 2004.” Count Eleven charged that on March 10, 2004, Gabriel aided and abetted the possession with intent to distribute of 500 grams or more of cocaine. Gabriel was convicted on both counts and now appeals.1 We will affirm.
First, Gabriel challenges the sufficiency of the evidence to support his conviction on Count One. “When the sufficiency of the evidence to support a jury’s verdict is challenged, we must view the evidence in the light most favorable to the government and must sustain the jury’s verdict if a reasonable jury believing the government’s evidence could find beyond a reasonable doubt that the government proved all the elements of the offense.” United States v. Syme, 276 F.3d 131, 156 (3d Cir.2002) (internal quotations omitted). In deciding whether a conviction rests on sufficient evidence, we draw “all available inferences in favor of the government.” United States v. Riddick, 156 F.3d 505, 509 (3d Cir.1998). “We do not weigh evidence or determine the credibility of witnesses in making this determination.” United States v. Beckett, 208 F.3d 140, 151 (3d Cir.2000).
Under this standard of review, we must sustain Gabriel’s conviction on Count One. Brent Donovan, who like Gabriel was a baggage handler at the airport, testified that Gabriel paid him to remove intact flight tags from checked luggage on three occasions in November and December of 2002.2 According to Donovan, Gabriel paid him amounts ranging from $500 to $4,000 for his efforts. This evidence alone was sufficient to sustain the conviction, but there was more. Donovan also testified that on certain occasions, Gabriel acted as a lookout while he removed flight tags from luggage in the bag room. Furthermore, there was evidence that Gabriel admitted as much to Agent Darnell Blake just after his arrest. Agent Blake testified that Gabriel blurted out to officers: “I have done it, acted as a lookout.” A reasonable jury could have concluded from this evidence that the government proved beyond a reasonable doubt the elements of the drug smuggling conspiracy charged in Count One.
Likewise, there is sufficient evidence to sustain Gabriel’s conviction on Count Eleven. Meleek Sylvester testified that on March 9, 2004, Alric Thomas paid him $4,000 and gave him two kilograms of cocaine. Sylvester was to bring the cocaine to the airport the next day and, with help from Robert Rawlins, ensure that it made it onto Flight 1902 to Newark. Rawlins backed out, however, leaving Sylvester to load the cocaine into a suitcase by himself. He did so in the bag room, while Gabriel and Robert Rawlins were present. Sylvester told them that he was loading two kilograms of cocaine into a suitcase. Both Rawlins and Gabriel told him, “go ahead. Do your thing.” The District Court reasoned that a reasonable jury could have found from this evidence that Gabriel was acting as a lookout for Sylvester. We agree, especially in light of Donovan’s testimony that baggage handlers involved in the conspiracy often acted as lookouts for each other while co-conspirators carried out their work in the bag room. For example, Donovan testified that he had served as a lookout for Mervin *197Dorival, and that Dorival, Gabriel, and Robert Rawlins had all acted as lookouts for him. Under these circumstances, a reasonable jury could have found Gabriel guilty of aiding and abetting cocaine possession, as charged in Count Eleven.
Gabriel next claims that there was a prejudicial variance between the indictment and the trial evidence. Count One of the indictment charged a single conspiracy. The District Court concluded, and the government conceded, that the trial evidence established two conspiracies. One involved Clyde Edinborough, Danny Rawlins, Dorival, and Dorival’s crew of baggage handlers. The other involved Thomas, Sylvester, Dorival, and other baggage handlers. Gabriel correctly points out that this discrepancy created a variance. See United States v. Perez, 280 F.3d 318, 345 (3d Cir.2002) (noting that “[wjhere a single conspiracy is alleged in the indictment, there is a variance if the evidence at trial proves only the existence of multiple conspiracies”). Near the end of the trial, the District Court cured this variance by dismissing Count One as to Edinborough. Gabriel claims that this was inadequate. He points out that the Court’s remedy “did not remove the evidence already admitted that established multiple conspiracies!)]” He argues that he was prejudiced by the “spillover” effect of the evidence related to the Edinborough conspiracy.
We are unpersuaded. Gabriel never explains how evidence of the Edinborough conspiracy “spilled over” or otherwise prejudiced him. In fact, he concedes that the government’s evidence in no way tied him to Edinborough. That assertion is consistent with our review of the record, and it significantly weakens Gabriel’s spillover claim. If none of the evidence concerning Edinborough’s conspiracy implicated Gabriel, then it is difficult to see how Gabriel was prejudiced by it. Gabriel is left with the bare assertion that it was “impossible for the jury to separate the individuals charged and the offenses they were charged with.” Gabriel offers no reason for us to believe this was the case, nor do we find any in the record. The District Court instructed the jury that it was to
analyze the evidence in the case separately as to each defendant. Although you’ll see [several] people listed as defendants, you’ll have to look at it as United States of America versus whoever is in the first slot, as if nobody else existed; and then United States of America versus the next person, as if nobody else was a defendant in the case, in determining whether or not the government has ... made out its burden of proof.
We generally presume that juries follow their instructions, Syme, 276 F.3d at 155, and Gabriel offers no compelling reason to depart from that rule here.
Next, Gabriel argues that the District Court improperly admitted a tape-recorded conversation between himself and informant Danny Rawlins. At the request of investigating officers, Rawlins asked Gabriel if “anything could go now.” Gabriel told him no, and that it was necessary to “lay off for a while.” Rawlins testified that he understood this to mean that no drugs could be moved through the airport at that time. The District Court admitted the recording over Gabriel’s objection because it concluded that the recording was an “admission of knowledge” of a drug smuggling conspiracy, and relevant because it showed “past involvement as well as intent or willingness to participate in future transactions.” We review this ruling for abuse of discretion. United States v. Johnson, 388 F.3d 96, 100 (3d Cir.2004).
Gabriel’s argument as to why the conversation should have been excluded cites *198no Third Circuit authority and is difficult to follow. He seems to argue that because Danny Rawlins was an informant, his conversation with Gabriel could not have constituted a conspiratorial agreement, and was therefore irrelevant and inadmissible. We disagree. Danny Rawlins testified that he understood the conversation to mean that no drugs could be moved through the airport at that time. The jury could have concluded that Gabriel shared that understanding. As the District Court reasoned, the conversation arguably demonstrated Gabriel’s knowledge of the drug-smuggling conspiracy, and tended to prove that he was either already involved in that conspiracy or willing to participate in the future. Therefore, the Court’s admission of the conversation was not an abuse of discretion.
Gabriel next claims that the trial judge was biased in favor of the government. He contends that the Court’s intervention on behalf of the government was so aggressive and pervasive that the Court effectively became an advocate for the prosecution. “[I]n order to reverse on grounds of excessive judicial intervention, the record must either disclose actual bias on the part of the trial judge [or] leave the reviewing court with an abiding impression that the judge’s remarks and questioning of witnesses projected to the jury an appearance of advocacy or partiality.” United States v. Wilensky, 757 F.2d 594, 598 (3d Cir.1985) (quoting Warner v. Transamerica Ins. Co., 739 F.2d 1347, 1351 (8th Cir.1984)). No “absolute, rigid rule exists” for determining when a trial judge oversteps his bounds and becomes an advocate for one party. Riley v. Goodman, 315 F.2d 232, 234 (3d Cir.1963). It is settled, however, that “the judge’s participation must never reach the point where it appears clear to the jury that the court believes the accused is guilty.” United States v. Beaty, 722 F.2d 1090, 1093 (3d Cir.1983) (internal quotation marks omitted). We find no evidence that the District Judge crossed this line. The record shows that he was actively involved in the trial, but at no point was his involvement so pervasive or one-sided as to project partiality to either the prosecution or the defense.
Gabriel also alleges prosecutorial misconduct during the trial. In considering a claim of prosecutorial misconduct, our inquiry is whether the prosecutor’s actions “so infected the trial with unfairness as to make the resulting conviction a denial of due process in light of the entire proceeding.” United States v. Morena, 547 F.3d 191, 194 (3d Cir.2008) (internal quotation marks omitted). After carefully examining the record, we find no evidence of prosecutorial misconduct. Accordingly, Gabriel’s request for relief on this basis will be denied.
We have considered the remainder of Gabriel’s challenges to his conviction and find them to be without merit. We will affirm the judgment of conviction.
. The District Court had jurisdiction under 18 U.S.C. § 3231 and 48 U.S.C. § 1612(a). We exercise appellate jurisdiction under 28 U.S.C. § 1291.
. Those tags would then be transferred to cocaine-filled suitcases supplied by other members of the conspiracy. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479747/ | *205OPINION
MICHEL, Circuit Judge.
This appeal comes from the Board of Immigration Appeals (the “Board”). Xi-uming Jiang (“Jiang”) has filed a petition for review of the decision of the Board to dismiss her appeal from the decision of the Immigration Judge (“IJ”) denying her a reopening of her application for asylum on the basis of changed country conditions and new facts and evidence that were previously unavailable to her at the time of her initial hearing. For the reasons set forth below, we will grant Jiang’s petition for review of the Board’s decision and remand the case.
I.
Jiang is a citizen of the People’s Republic of China (“China”) and a native of Lian-jiang County in the Fujian Province of China. She left China and arrived in the United States on September 19, 2000. On March 15, 2001, she filed an initial application for asylum alleging a well-founded fear of persecution based upon her cohabiting boyfriend’s practice of Falun Gong. However, before a hearing on the merits could be held, Jiang withdrew her application and, on June 19, 2001, the IJ ordered her removed to China. Jiang waived appeal of the Id’s decision; however, she remained in the United States. She subsequently met and married JianZhong Huang; the couple first married in a traditional Chinese ceremony on December 9, 2003 and registered their marriage on August 2, 2005. Jiang later gave birth to two daughters, born on April 19, 2004 and February 6, 2008.
On September 19, 2007, Jiang filed a motion to reopen and a request to file a successive asylum application. Jiang’s motion was based upon her alleged fear of forced sterilization if she were to return to China for her alleged violations of China’s family planning policies. In the affidavit accompanying her motion, Jiang averred that she learned, through telephone contacts with her friends and relatives in China, that the local government of the town to which she would be returned had substantially increased the use of forced abortions and sterilizations. Moreover, according to Jiang, people who resist the Population and Family Planning Law (“PFPL”) face criminal prosecution as well. Jiang further averred that she learned of individuals in her home village who had been forcibly sterilized after giving birth to a second child. Jiang testified that she believed that, should she be removed to China with her family, her children will be registered as Chinese citizens and that, because she will not be classified as a “Returned Overseas Chinese,” she will consequently face forcible sterilization.1
Jiang also proffered the affidavit of a friend, XiuYing Huang (“Huang”), who is a citizen of China currently living in Jiang’s hometown. In her affidavit, Huang stated that she was forcibly sterilized in 2006 after the birth of her second child. Huang also stated that a fellow villager, Yue Ying Pan, was forced to undergo an abortion after she became pregnant a second time, and that such occurrences are “very common” in her hometown. Like Jiang, Huang also averred that people who resist the PFPL face criminal prosecution. Huang also testified that she consulted the local village committee and that the committee informed her that enforcement of *206the PFPL is very strict and unequivocal: women who give birth to a single child are required to have an IUD inserted and women who give birth a second time are targeted for forcible sterilization. Jiang also included an official letter she received from the Village Committee of Lantian Village (the “Village Committee letter”).2 This communication, addressed directly to Jiang,3 confirms the information in Jiang’s and Huang’ affidavits, viz., that women who give birth to a single child are required to have an IUD inserted and women who give birth a second time are targeted for sterilization. The letter mirrors the affidavits of Jiang and Huang, and informs Jiang that, should she return to China, her children will be registered as Chinese citizens and that, because she will not be classified as an “Overseas Chinese,” she will be required to undergo the same family planning procedure as all local residents.
On November 1, 2007, the IJ denied Jiang’s petition to reopen. The IJ found that, because the motion was filed over six years after the IJ ordered her removal, Jiang would have to establish an exception to the 90-day time limit in which to file a motion to reopen; otherwise her motion would be time-barred. See 8 C.F.R. § 1003.2(c)(2). The IJ held that Jiang failed to establish such an exception to the time limit and denied her motion to reopen her application for asylum. In denying her motion to reopen, the IJ noted that the Board had previously held that a Chinese citizen who had been denied asylum in the United States and who had since given birth to a second child faced a “heavy burden” in supporting a motion to reopen a petition for asylum based upon changed country conditions. In re S-Y-G-, 24 I. & N. Dec. 247, 251 (B.I.A. August 2, 2007). The IJ held that Jiang had experienced a change in “personal circumstances” rather than á change of circumstances “arising in the country of nationality,” and that the former was insufficient to create an exception to the 90-day time limit. The IJ further held that, personal circumstances notwithstanding, Jiang had failed to meet her “heavy burden” because she failed to establish that: “ ‘(1) a relevant [i.e., material] change in country conditions occurred, (2) the applicant has violated family planning policy as established in that alien’s local province, municipality, or other relevant area, and (3) the violation would be punished in a way that would give rise to a well-founded fear of persecution.’ ” In the matter of Jiang, File No. A 77 322 643, at 3 (Immigration Court November 28, 2008) (quoting S-Y-G- 24 I. & N. Dec. at 251). The IJ based his holding on a review of Jiang’s affidavit, the affidavit of Huang, the State Department’s 2005 and 2006 Country Conditions Report, and various documents from the Chinese government and the media, including the letter from the Lantian Village Committee.
Jiang appealed and, on November 28, 2008, the Board affirmed the IJ’s denial of the motion to reopen. The Board found that Jiang’s affidavit was not persuasive because she “ha[d] no personal knowledge of the information she obtained from a friend concerning recent activities by family-planning officials in her native village in Fujian Province and their awareness of her United States citizen children.” The Board also found that “her friend’s affidavit also does not warrant reopening because it does not indicate whether she or *207the villagers who were allegedly forcibly sterilized were parents of children born outside of China.” Consequently, the Board held that Jiang’s motion to reopen her petition for asylum was time-barred under 8 C.F.R. § 1003.2(c)(2) and that she had failed to demonstrate prima facie eligibility for the relief sought, as required to warrant an exception based on changed country conditions. This appeal timely followed.
II.
The scope of our review of the Board’s order denying Jiang’s motion to reopen her petition for asylum is quite limited. See INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). We review the Board’s denial of a motion to reopen for an abuse of discretion. See Liu v. Attorney General, 555 F.3d 145, 148 (3d Cir.2009). Similarly, we uphold the Board’s factual determinations if they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (internal citations and quotations omitted). We reject the Board’s findings only if “any reasonable adjudicator would be compelled to conclude to the contrary.” Liu, 555 F.3d at 148; 8 U.S.C. § 1252(b)(4)(B).
Under Third Circuit law, there are both procedural and substantive hurdles that must be overcome in a motion to reopen removal proceedings. Shardar v. Attorney General of U.S., 503 F.3d 308, 313 (3d Cir.2007). Under the governing regulations, “an alien may file only one motion to reopen removal proceedings ... and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered.” 8 C.F.R. § 1003.2(c)(2). However, the “time and numerical limitations ... shall not apply” to motions to reopen that “apply or reapply for asylum or withholding of deportation 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.” Id. Therefore, if the asylum applicant presents material evidence of changed country conditions that could not have been presented during the hearing before the IJ, his motion can be considered, even if there has been a prior motion to reopen or the motion is beyond the 90-day time limit for filing. See Filja v. Gonzales, 447 F.3d 241, 251-54 (3d Cir.2006).
With regard to the substantive hurdle, “[a]s a general rule, motions to reopen are granted only under compelling circumstances.” Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir.2004). The Board has held that, in exercising its discretion to reopen proceedings, “we have been willing to reopen where the new facts alleged, when coupled with the facts already of record, satisfy us that it would be worthwhile to develop the issues further at a plenary hearing on reopening.” In re L-O-G-, 21 I. & N. Dec. 413, 419 (B.I.A. June 14, 1996) (internal quotation marks and citation omitted). As noted, “[a] motion to reopen must establish prima facie eligibility for [the relief sought].” Guo, 386 F.3d at 563. In order to make a prima facie case, the applicant must “ ‘produce objective evidence showing a “reasonable likelihood” that he can establish [that he is entitled to relief].’ ” Id. (quoting Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir.2002)) (alteration in original). For an asylum claim, this “means merely showing a realistic chance that the petitioner can at a later time establish that asylum should be granted.” Id. at 564 (internal quotation marks and citation omitted). Facts presented in the motion to reopen are “accepted as true *208unless inherently unbelievable.” Shardar, 503 F.3d at 313 (quoting Bhasin v. Gonzales, 423 F.3d 977, 987 (9th Cir.2005)). That said, the regulations provide that “[t]he Board has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief.” 8 C.F.R. § 1003.2(a). But although the Board has discretion to deny a motion to reopen notwithstanding a prima facie showing, when it denies a motion to reopen on that ground, we review that denial to ensure that it is supported by substantial evidence and is not an abuse of discretion. Sevoian, 290 F.3d at 174.
III.
Jiang argues that the Board, in concluding that she had not met her burden of proof, erred in attaching minimal weight to her affidavit, the affidavit of Huang, and the official notice from the Village Committee of Lantian Village. Specifically, the Board found Jiang’s affidavit “unpersuasive because she has no personal knowledge of the information she has obtained from a friend concerning recent family-planning officials in her native village in Fujian Province and their awareness of her United States citizen children.” In re Xiuming Jiang, File No. A077 322 643, at 2 (B.I.A. November 28, 2008) In addition, the Board also found that “her friend’s affidavit also does not warrant reopening because it does not indicate whether she or the villagers who were allegedly forcibly sterilized were parents of children born outside of China, like the respondent.” Id. Jiang argues that the Board erred in failing to attach sufficient weight to these documents, which she contends are highly probative of her claim that either she or her Chinese-citizen husband will be forcibly sterilized upon their return to China. The government argues that Jiang’s fear of forcible sterilization upon her return is “purely speculative” and that she cannot make a prima facie case that she is eligible for asylum. The government maintains that the Board correctly relied upon its prior evaluation of evidence of alleged Chinese coercive measures from its previous holdings in In re S-Y-G-, 24 I. & N. Dec. 247 (B.I.A. Aug. 2, 2007); In re J-W-S-, 24 I. & N. Dec. 185 (B.I.A. June 7, 2007), and In re C-C-, 23 I. & N. Dec. 899 (B.I.A. March 23, 2006). Based upon the analyses contained in these prior cases, the government contends, the Board concluded that Jiang had not established an objectively reasonable fear of forced sterilization based upon the birth of two U.S. citizen children. Specifically, the Board found in those cases that, although there was some evidence of incidences of forced sterilization, there was no evidence of a uniform policy of forcible sterilization within the petitioner’s home region.
Consequently, the government argues, given the evidence presented, it was reasonable for the Board to determine that Jiang failed to establish that she will be singled out for prosecution. The government dismisses Jiang’s evidence as “anecdotal,” and argues that there is no credible evidence that forced sterilizations are mandated in Fujian Province after the birth of a second child. Finally, the government argues that Jiang adduces no evidence to support her claim that individuals in her position, viz., Chinese citizens lacking an “Overseas Chinese” classification and returning to China with two foreign-born children, are likely to be targeted for forcible sterilization.
The government’s argument might be more persuasive were it not for the official, personalized communication sent to Jiang from the Village Committee of her home town. That letter states in no uncertain terms that, as a returning Chinese citizen lacking an “Overseas Chinese” classifica*209tion and with two foreign-born children (who would necessarily be registered as Chinese citizens), Jiang would be a target for forced sterilization. This communication corresponds precisely with the affidavits of Jiang and Huang. Because the Third Circuit requires that “[fjacts presented in the motion to reopen are accepted as true unless inherently unbelievable,” the Board is required to accept the local Chinese government’s assertion as true. Shardar, 503 F.3d at 313 (internal quotation marks and citations omitted).
The translated letter, worth reproducing in its entirety, states:
Villager Xiuming Jiang:
In regard to your inquiry about the specific regulations of China’s Population and Family Planning Law in our village, we now reply as follows:
Family planning is one of the most fundamental, crucial national policies of the People’s Republic of China. Our village strictly implements the Regulations of Population and Family Planning of Fuji-an Province; any citizen of China who gives birth to one child will be the target for IUD insertion; citizens with two children will be targets for sterilization. Since you have no legal status in the United States, you are still a eitizen of China, not classified as an “oversea [sic] Chinese.” Pursuant to Article 5 of the Nationality Law of the People’s Republic of China, once you come back to China, your US-born children will be registered as Chinese citizen [sic] and you will be required to undergo the same family planning procedure as all local residents.
Hereby notify.
Village Committee of Lantian Village
The Board’s conclusion that the Village Committee letter was of “little evidentiary weight” because it “does not demonstrate a reasonable likelihood that [Jiang] would be forcibly sterilized or face any other sanctions amounting to persecution or torture if she did not voluntarily submit to that procedure” is scarcely credible. Jiang, File No. A077 322 643, at 2. The letter, addressed specifically to Jiang, states (1) that mothers having given birth to two children will be targets for sterilization, (2) that, upon her return, Jiang’s two children would be registered as Chinese citizens for the purposes of the PFPL, and (3) that Jiang would be required to undergo the “same family planning procedure.” One need not be particularly acute to complete the syllogism and reason that Jiang would therefore be a “target[ ] for sterilization.”
Moreover, although the Board discounted the Village Committee letter because it was a photocopy, it did not indicate that it questioned the authenticity of the letter, nor did it suggest that it had any grounds to do so. Consequently, the Board’s affording of little evidentiary weight to the Village Committee letter, and the affidavits of Jiang and Huang which reflect the contents of that letter, amounts to an abuse of discretion.
The government argues that the 2006 U.S. State Department’s relevant country condition report did not include Fujian Province among those requiring termination of pregnancy if the pregnancy violates provincial family planning regulations, and points out that violators of the PFPL could face only economic threats including “social compensation fees.” However, the Village Committee letter plainly states that family planning laws will be strictly enforced, including required sterilization. If true, and the Board is required to accept this evidence as true, then there was prima facie evidence that there has been a change in country condi*210tions in the locality to which Jiang will be repatriated.
Finally, Jiang submitted a wealth of documentary evidence that the Board failed to address or summarily dismissed as “cumulative and duplicative of ... our recently published decisions,” describing similar enforcement of the People’s Republic of China’s PFPL. For example, a 2003 Administrative Decision of the Department of Family-Planning administration of Fujian Province states that Chinese citizens living in the United States without permanent resident status there who give birth to children born in the U.S. are subject to the same family-planning laws as Chinese citizens living in China, and are subject to those laws upon their return to Fujian Province. Although this and other similar documents do not, by themselves, necessarily describe the situation in Jiang’s own village, they provide a context in which to place the highly personalized and specific statements of the Village Committee letter.
IV.
Jiang has made a prima facie case of changed country conditions insofar as she has produced cumulative, consistent, and personalized objective evidence demonstrating a reasonable likelihood that she is entitled to relief. By ignoring or dismissing the evidence of changed country conditions and Jiang’s well-founded fear of forcible sterilization should she return to China, the Board abused its discretion in denying her petition to reopen. Consequently we will grant Jiang’s petition for review of the Board’s denial of her motion to reopen and will remand the case to the Board for further proceedings consistent with this opinion.
. To qualify as a "Returned Overseas Chinese", Jiang claims that she would have to be either a citizen or Permanent Resident of the United States.
. Jiang's home village, to which she would be repatriated by the Government of the People's Republic of China subsequent to her removal from the United States.
. The letter is addressed to “Villager Xiuming Jiang” and was obtained by Jiang's mother living in Lantian Village, who approached the Village Committee directly. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479749/ | OPINION
PER CURIAM.
Ailin Jiang, a native and citizen of the People’s Republic of China, seeks review of a final order of removal entered by Board of Immigration Appeals (“BIA”). We will deny the petition for review.
I.
Jiang, currently age thirty-five, entered the United States in February 2005 without being admitted or paroled. He was placed in removal proceedings shortly thereafter, at which time he conceded re-movability under INA § 212(a)(6)(A)(i). He applied for asylum, withholding of removal, and Convention Against Torture (“CAT”) relief. At a hearing before the Immigration Judge (“IJ”) in 2006, Jiang testified that he married in China and has one child (a son). Shortly after his son was born in 1997, his wife received a forced IUD. In 2002, the couple hired a private doctor to remove the IUD so that they could have more children. After the IUD was removed, the couple went into hiding at a cousin’s home while Jiang worked nearby. In 2003, Jiang’s wife became pregnant and tried to hide that fact *225by staying indoors. The pregnancy was discovered by family planning officials, a forced abortion was performed at a hospital, and a new IUD was inserted. Jiang’s home village family planning office fined him 8,000 yuan, which he paid in full in two installments. Jiang left for the United States shortly thereafter, with his family remaining in China.
On March 14, 2006, the IJ rejected Jiang’s credibility and denied relief. The BIA sustained Jiang’s appeal and remanded the matter for further proceedings, holding that the adverse credibility determination was “largely based on improper speculation” and failed to comport with controlling precedent.
Upon remand, the IJ scheduled a new hearing. At that hearing, Jiang elected to “rest on the record” from the 2006 hearing and offered no additional testimony. The IJ denied the applications for relief on the merits. Accepting Jiang’s credibility, the IJ held that he failed to establish a claim for asylum based on “other resistance” to China’s population control program. The IJ found that payment of the fine did not rise to the level of persecution, that the act of hiding at the cousin’s home did not warrant relief, and that Jiang personally faced no threat of sterilization or persecution in China.
The BIA dismissed Jiang’s appeal. It agreed with the IJ that payment of the fine and the act of hiding from officials so that Jiang and his wife could have another child do not rise to the level of past persecution, and do not establish a well-founded fear of future persecution, particularly in the absence of evidence that authorities are seeking out Jiang. The BIA thus denied asylum, and it affirmed the denials of withholding of removal and CAT relief. Jiang timely filed a petition for review in this Court.
II.
We have jurisdiction under 8 U.S.C. § 1252(a)(1).1 “[Wjhen 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 agency factual findings regarding asylum and withholding of removal under the deferential substantial evidence standard, which asks that those findings be supported by “reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (citing 8 U.S.C. § 1105a(a)(4)); see Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir.2005). Such findings are deemed “ ‘conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Chen, 376 F.3d at 222 (quoting 8 U.S.C. § 1252(b)(4)(B)).
To establish eligibility for asylum, Jiang must show past persecution or a well-founded fear of future persecution on account of, inter alia, political opinion. See Vente v. Gonzales, 415 F.3d 296, 300 (3d Cir.2005). Here, the record does not compel a finding of eligibility for asylum. Jiang cannot claim “other resistance” based on his wife’s subjugation to family planning policy, see Lin-Zheng v. Att’y Gen., 557 F.3d 147, 156 (3d Cir.2009) (en banc), and thus Jiang’s claim for relief turns, as the BIA recognized, on the 8,000 *226yuan fine and the fact that he hid for a time at his cousin’s home.
While “deliberate imposition of severe economic disadvantage which threatens a petitioner’s life or freedom may constitute persecution,” Li v. Att’y Gen., 400 F.3d 157, 168 (3d Cir.2005), the 8,000 yuan fíne imposed upon Jiang does not meet this standard. Jiang paid the fine in two installments over a short period of time, and a review of the record reveals no evidence at all that the fine imposed a severe economic disadvantage amounting to persecution. See id. (“Such disadvantage might, for instance, involve the deprivation of liberty, food, housing, employment, and other essentials of life.”). Jiang essentially concedes that he failed to show hardship resulting from the fine, but he argues that it was the IJ who erred by failing to ask “more questions” of Jiang to create a record on the issue. As the BIA correctly noted, however, Jiang’s counsel chose not to offer additional testimony after the matter was remanded for further proceedings. Because Jiang had ample opportunity to create a record regarding economic persecution, we cannot fault the IJ for Jiang’s failure to do so. Finally, the record does not compel the conclusion that Jiang’s act of hiding with his wife for a short time amounted to a form of “other resistance” under 8 U.S.C. § 1101(a)(42)(B), or, in any event, that Jiang suffered any harm rising to the level of persecution as a result of his hiding.
Where past persecution is not established, an alien can demonstrate a well-founded fear of future persecution by showing that he has a “genuine fear,” and that a “reasonable person in [his] circumstances would fear persecution if returned to [his] native country.” Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir.2003). The BIA correctly noted that there is no evidence of record that Chinese authorities have an interest in Jiang, or that Jiang has a well-founded fear based on his purported resistance to family planning policies. We conclude that the asylum claim was properly denied.
“[A]n applicant who cannot meet the standard for asylum will necessarily be unable to meet the standard for withholding of removal.” Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 348-49 (3d Cir.2008). Because Jiang has not shown past persecution or a well-founded fear of future persecution, he cannot meet the higher standard for withholding of removal. See id.
III.
For the foregoing reasons, we will deny the petition for review.
. Because Jiang makes only passing mention of the CAT claim in his opening brief, and does not set forth argument on the issue, we deem the CAT claim waived. See Lie v. Ashcroft, 396 F.3d 530, 532 n. 1 (3d Cir.2005). Accordingly, we limit our analysis to asylum and withholding of removal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479752/ | *230OPINION
PER CURIAM.
Noelly Nicolas petitions for review of an order of the Board of Immigration Appeals (“BIA”), which dismissed her appeal from , an Immigration Judge’s (“IJ”) final removal order. We will deny the petition for review.
I.
Nicolas is a native and citizen of Haiti. She came to the United States in October 2007 with a transit visa, but she did not have a ticket or money to go on to her intended destination, Brazil. When questioned, she asserted that she had a fear of returning to Haiti, and she was placed in immigration proceedings. She was charged with being removable for seeking entry through fraud or misrepresenting a material fact, and for not being in possession of a valid immigrant visa.1 She applied for asylum, withholding of removal and. protection under the Convention Against Torture (“CAT”).
Nicolas sought relief based on an incident that occurred in October 2005 when she was sixteen years old. She was walking to a friend’s home to spend the weekend, when she was abducted by five armed, masked men, and was forced into a car. They blindfolded her and tied her hands together and took her to an unknown location where she was kept for two and a half days. She was pushed, kicked and beaten because she refused to do what they wanted. They beat her with lamps, arms and feet, and burned her with a plastic object on her arm. She still retains a scar from the burn. On the third day, they put her back in the car, drove for a little time, and pushed her out of the car. They told her if she told anyone they would find her and harm her again. She walked home and told her mother that she was burned when she was cooking with her friend. Her mother took her to a hospital where she was treated and released. She lied to her mother because she did not want her mother to report the incident to the police or share the information with other people. She did not report the incident to the police, because she believed the police are involved in kidnapping.
Nicolas testified that she believed she was kidnapped because she was “a defenseless little girl,” and because some people “are frustrated that ... they cannot enjoy the opportunity that some people do.” A.R. 122-23. She was also aware of two other young female students who had been kidnapped. A.R. 123-24. Her asylum application noted that she sought relief as a member of a particular social group; as a “student[ ] and young girl[ ].” A.R. 229.
The IJ found that Nicolas testified credibly, but denied relief because she had “not established that she was abducted on account of at least one of the central reasons enumerated in the Act.” A.R. 66. The IJ found that Nicolas had been a victim of crime, and that “there are widespread kidnappings of citizen [sic] of all societal strata by armed and organized criminal elements in Haiti ... and one particular group is not targeted over another group.” A.R. 68. The IJ therefore denied Nicolas asylum and withholding of removal. The IJ also found that Nicolas had failed to show that she had been tortured in the past or would likely suffer torture in the future. A.R. 70.
The BIA agreed that the record did not support a conclusion that kidnappings in Haiti focused on any particular group, “let alone a particular social group made up of *231young female students.” A.R. 4. The BIA affirmed the IJ’s finding “that the respondent did not prove that her membership in a particular social group was or will be at least one central reason for the persecution.” Id. The BIA also found her ineligible for relief under the CAT, as she had “not shown that anyone in the Haitian government would affirmatively consent or acquiesce to her torture....” Id. Nicolas filed a timely petition for review.
II.
We have jurisdiction over this petition for review under 8 U.S.C. § 1252. Where, as here, the BIA adopted some of the findings of the IJ and made additional findings, we review the decisions of both the BIA and the IJ. Gomez-Zuluaga v. Attorney General 527 F.3d 330, 339 (3d Cir.2008). To be granted asylum as a refugee, an applicant must establish that she is unable or unwilling to return to her homeland “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). To be entitled to withholding of removal, an applicant must prove that her “life or freedom would be threatened in that country because of [her] race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3). Thus, to be eligible for asylum or withholding of removal, it is not enough for Nicolas to show that she suffered persecution in the past; she would also need to show “that the persecution was on account of [her] ... membership in a particular social group.... ” Lukwago v. Ashcroft, 329 F.3d 157, 170 (3d Cir.2003). Pursuant to the REAL ID Act of 2005, the “applicant must establish that ... membership in a particular social group ... was or will be at least one central reason for persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i) [INA § 208(b)(1)(B)® ]. “[A]sylum may not be granted if a protected ground is only an incidental, tangential, or superficial reason for persecution of an asylum applicant.” Ndayshimiye v. Att’y Gen., 557 F.3d 124, 130 (3d Cir.2009) (internal quotation and citation omitted).
As noted, Nicolas argued that she was and would be persecuted because of her membership in the particular social group of young, female students. In Matter of Acosta, 19 I. & N. Dec. 211, 233 (B.I.A.1985), the BIA suggested that “sex” might be an innate characteristic that could link the members of a “particular social group.” But “[possession of broadly-based characteristics such as youth and gender will not by itself endow individuals with membership in a particular group.” Lukwago, 329 F.3d at 172. Further, it is not clear that Nicolas’s attackers were motivated by her gender, her youth, or her status as a student. See Niang v. Gonzales, 422 F.3d 1187, 1199-1200 (10th Cir.2005) (focus should not be on whether gender can constitute social group, but on whether “members of that group are sufficiently likely to be persecuted that one could say that they are persecuted ‘on account of their membership”); see also Gomez-Zuluaga, 527 F.3d at 345 n. 10 (“It is not necessary for us to determine whether this is a cognizable ‘particular social group’ under the statute, because there is substantial evidence in the record to conclude that [the perpetrator] was not motivated by Petitioner’s membership in a particular social group© ”). Indeed the evidence in the record showed that kidnappings were widespread in Haiti and not limited to young, female students.
Because substantial evidence supports the BIA’s conclusion that Nicolas did not meet her burden of showing that she suf*232fered persecution on account of a protected ground, we may not grant the petition with regards to Nicolas’s claims for asylum and withholding of removal. See Zubeda v. Ashcroft, 333 F.3d 463, 469-70 (3d Cir.2003) (alien who is unable to establish refugee status for the purpose of asylum will be unable to establish right to withholding of removal).
III.
The applicant for relief under the CAT bears the burden of proving that it is more likely than not that she would be tortured if removed to the proposed country of removal. 8 C.F.R. § 1208.16(c)(2); see also Kamara v. Att’y Gen., 420 F.3d 202, 212-13 (3d Cir.2005). For an act to constitute torture under the CAT, it must be: (1) an act causing severe physical or mental pain or suffering; (2) intentionally inflicted; (3) for a proscribed purpose; (4) by or at the instigation of or with the consent or acquiescence of a public official who has custody or control of the victim; and (5) not arising from lawful sanctions. Id. at 213; see also 8 C.F.R. § 1208.18(a)(1). The requirement that the torture be intentionally inflicted requires a showing that the “prospective torturer will have the goal or purpose of inflicting severe pain or suffering” on the petitioner. Pierre v. Att’y Gen., 528 F.3d 180, 190 (3d Cir.2008) (en banc). The “acquiescence of a public official” requirement does not require actual knowledge of torturous conduct, but can be satisfied by a showing that the government is willfully blind to the conduct in question or has breached its legal responsibility to prevent it. Silva-Rengifo v. Att’y Gen., 473 F.3d 58, 70 (3d Cir.2007); Gomez-Zuluaga, 527 F.3d at 350.
We agree with the BIA that Nicolas failed to show that she is likely to be tortured in Haiti. Although country reports indicate that kidnapping is widespread, there is no indication that anyone will kidnap Nicolas with the “specific intent” to torture her. If there is no evidence that the “prospective torturer will have the goal or purpose of inflicting severe pain or suffering,” the specific intent requirement of CAT is not fulfilled. Pieire, 528 F.3d at 190. This showing is required even when the conditions in the country of removal are such that removal is likely to result in harm to the petitioner. Id. at 191 (denying CAT relief where petitioner was likely to experience pain and suffering due to poor conditions in Haitian prisons, but failed to show that Haitian officials had the specific intent to inflict severe pain or suffering by placing him in detention upon removal). It appears that Nicolas was the victim of a random criminal act, and was not singled out for the specific purpose of being tortured.
For the foregoing reasons, we will deny the petition for review.
. She was eventually found removable only on the latter ground. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479754/ | OPINION
COWEN, Circuit Judge.
Feng Zhi Li (“Petitioner”), and her children, Zhen Hua Chen, Yu Fang Chen, and Zhu Yu Chen (as derivative beneficiaries), petition for review of an order of the Board of Immigration Appeals (“BIA”) denying a motion to reopen. For the foregoing reasons, this petition will be denied.
I.
Petitioner and her children, all natives of Fujian Province and citizens of the People’s Republic of China, were smuggled out of China in 2002. Petitioner was eventually placed in removal proceedings, and, in 2004, she requested asylum, withholding of removal, and relief under the United Nations Convention Against Torture (“CAT”) on behalf of herself and her children. Among other things, Petitioner claimed that her husband was forcibly sterilized in China and that she feared she would be forcibly sterilized for violating China’s one-child policy if she were forced to return to her native country.
Following an August 2, 2004 hearing at which she was represented by counsel, the Immigration Judge (“IJ”) denied the requested relief. The IJ initially found that removability was established by clear and convincing evidence in the record. Stating that she had “taken into account such factors as [Petitioner’s] demeanor, [as well as] the rationality and internal consistency and inherent persuasiveness of her testimony,” the IJ relied on a number of specific grounds to make an adverse credibility determination against Petitioner. (AR201.) The IJ further indicated that Petitioner’s impetus for coming to the United States “appears to be more economic than anything else” and agreed with the government’s attorney “that bringing her three children through to the United States through a smuggler is an extraordinarily dangerous process.” (AR205.) Finally, she determined that there was nothing to indicate that Petitioner would be subjected to torture in her home country.
Petitioner’s then-counsel appealed to the BIA, but this appeal was dismissed in a per curiam decision dated January 24, 2005. The BIA found that the testimony and documents in the record, “[e]ven if insufficient to support a sweeping adverse *237credibility finding under applicable Circuit law,” still provided the IJ “with legitimate reason to question the veracity of the [Petitioner’s] claim.” (AR300 (citation omitted).) The BIA specifically noted the existence of “discrepancies between the [Petitioner’s] testimony and supporting documents describing the circumstances surrounding the [Petitioner’s] husband’s alleged sterilization.” (Id. (citations omitted).) In turn, the materials submitted on appeal failed to address or provide a convincing explanation for the discrepancies. Stating that the IJ did not make a clearly erroneous finding, the BIA declined to set aside the IJ’s determination that Petitioner failed to satisfy the respective burdens of proof applicable to claims for asylum and withholding of removal. The BIA further held that Petitioner failed to identify any reversible error in the IJ’s conclusion that she failed to meet the burden for CAT relief. Finally, the BIA stated that Petitioner’s claim that the IJ abused her discretion by denying a continuance motion was without merit insofar' as the IJ herself conducted “a full and fair hearing,” the Petitioner “has not articulated or identified prejudice stemming from the [IJ’s] denial” or otherwise shown that the “outcome of her case would have been different had the motion been granted,” and the record on the whole supported the IJ’s resolution. (Id. (citation omitted))
No petition for review was filed with this Court with respect to the BIA’s January 24, 2005 decision. On June 7, 2006, Petitioner did file a counseled motion to reconsider with the BIA. In a per curiam decision dated August 21, 2006, the BIA dismissed this motion. It found the motion to be untimely, adding that there were no exceptional circumstances warranting sua sponte reconsideration on its part. According to the BIA, the motion “has been filed on the [Petitioner’s] behalf by the same attorney who represented [Petitioner] on appeal,” this attorney was served with a copy of the decision dismissing the administrative appeal on January 24, 2005, and he has nevertheless “offered no explanation for why he waited well over a year to assert error in our decision.” (AR284 (footnote omitted)). The BIA nevertheless went on to consider the IJ’s credibility determination again, stating that: “Under this [clearly erroneous] standard, which we are bound by the regulation to apply, although there may be isolated aspects of the Immigration Judge’s adverse credibility finding that we may not have relied upon if we were the fact-finding authority, we may not reverse it unless we are left with the definite and firm conviction that the ultimate conclusion is wrong.” (AR284 n. 1.) Petitioner obtained new counsel and filed a petition for review of the BIA’s April 21, 2006 decision on the grounds that her prior counsel was ineffective; this Court dismissed the petition on October 19, 2007 for lack of jurisdiction as ineffective assistance had not been raised below. See Li v. Attorney General, C.A. No. 06-4155.
On January 16, 2008, Petitioner, represented by her new attorney, filed a motion to reopen with the BIA. She claimed both changed country conditions as well as ineffective assistance of counsel. The BIA denied the motion to reopen on March 7, 2008. The BIA explained that Petitioner failed to demonstrate a change in country conditions. It then concluded that, while complying “with the procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988),” the Petitioner failed to demonstrate that her former counsel’s performance was deficient or otherwise resulted in prejudice. (AR16.) The BIA provided the following explanation:
.... We note that the [Petitioner’s] December 24, 2007, affidavit submitted *238with the present motion and filed with her disciplinary complaint attests that “the Chinese Birth Control officials had forced me to undergo sterilization while I was in China after giving birth to three children.” The affidavit makes no reference to her husband, and concludes with the statement that the affidavit “has been read back to me in the Mandarin dialect of Chinese which I am fluent in.” However, the respondent testified before the Immigration Judge that it was her husband who was sterilized rather than herself (Tr. 35-36), a fundamentally different factual claim that is also referenced elsewhere by counsel in her present motion papers.
(Id.)
Petitioner filed a counseled petition for review with the Court with respect to this BIA order denying the motion to reopen. She further moved for a stay of removal, but her motion was denied on September 18, 2008. Petitioner filed another stay motion, which, construed as a motion for reconsideration of the order denying her motion for stay, was likewise denied on January 27, 2009.
On April 4, 2008, Petitioner, through counsel, moved in the BIA for reconsideration of the agency’s reopening decision. The BIA denied this motion on May 2, 2008. It noted that Petitioner claimed in her Lozada affidavit that her former attorney did not pursue judicial review of the initial January 24, 2005 decision dismissing her administrative appeal because her relatives did not pay for his services. However, “[t]he affidavit also reflects that after the dismissal of the appeal, the lead respondent did not consult with the attorney for more than 4 months following our decision.” (AR3 (citation omitted).) The BIA stated that Petitioner failed to provide any evidence that, after the January 24, 2005 decision, either she or her relatives consulted with, entered into an agreement with, or had any contact with this attorney before the expiration of the filing deadlines for a reconsideration motion or a review petition. The BIA ultimately stood by its prior finding of a failure to demonstrate prejudice, adding that the “explanation for a factual error in the lead respondent’s affidavit pertaining to whether the lead respondent or her husband was sterilized in China would not alter our decision.” (Id.) Petitioner never filed a petition for review with respect to this May 2, 2008 reconsideration ruling by the BIA.
II.
Because Petitioner filed the requisite petition in a timely fashion, we have jurisdiction to review the BIA’s March 7, 2008 decision denying her motion to reopen. See, e.g., 8 U.S.C. § 1252. We, however, lack jurisdiction to review the BIA’s other decisions, respectively dated May 2, 2008, and January 24, 2005, because Petitioner failed to file a timely petition of review as to such rulings. See, e.g., id.; Stone v. INS, 514 U.S. 386, 405-06, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995). We likewise previously dismissed on jurisdictional grounds a petition to review the BIA’s August 21, 2006 decision.
This Court has indicated that “[a] claim of ineffective assistance of counsel in removal proceedings is cognizable under the Fifth Amendment — i.e., as a violation of that amendment’s guarantee of due process.” Fadiga v. Attorney General, 488 F.3d 142, 155 (3d Cir.2007) (citations omitted). An alien asserting a denial of due process “must show (1) that he was ‘prevented from reasonably presenting his case’ and (2) that ‘substantial prejudice’ resulted.” Id. (quoting Khan v. Attorney General, 448 F.3d 226, 236 (3d Cir.2006)). In general, the BIA’s denial of a motion to reopen is reviewed for an abuse of discre*239tion. See, e.g., id. at 153. But “we review de novo the Board’s determination of an underlying procedural due process claim.”1 Id. (citations omitted).
III.
Petitioner argues at some length that the BIA committed reversible error by failing to grant her motion to reopen pursuant to the theory of ineffective assistance of counsel. In particular, she claims that her previous attorney provided ineffective assistance before the IJ as well as before the BIA in the initial appellate proceeding challenging the IJ’s ruling against her. She further asserts that “prior counsel failed in his responsibility to communicate with Petitioners while they were in detention, subsequent to the dismissal of the original BIA appeal.” (Petitioner’s Brief at 23 (emphasis omitted).) Petitioner even argues that the manner in which ■ the BIA dealt with (or did not deal with) her various claims violated her right to due process under the Fifth Amendment. We conclude that the underlying motion to reopen was properly denied.2
We begin with the question of whether Petitioner’s lawyer provided ineffective assistance after the BIA’s January 24, 2005 dismissal of her appeal from the IJ’s initial decision denying asylum and related relief. In its subsequent May 2, 2008 decision, the BIA expressly addressed and rejected this claim. Petitioner, in turn, takes issue with the agency’s reasoning, stating, inter alia, that it placed “an unfair burden on Petitioners, who were uneducated, indigent, illiterate, and spoke no English, to contact their attorney, while they were in detention.” (Id. at 23 (emphasis omitted).) Nevertheless, as previously noted, we lack jurisdiction to review the May 2, 2008 decision because Petitioner failed to file a petition for review with respect to this subsequent order. In any case, even if this Court has jurisdiction (which it does not), we would still conclude that the BIA did not commit reversible error here due, among other things, to the lack of any evidence indicating that either Petitioner or her relatives (who were not otherwise detained and had retained and agreed to pay the attorney in the first place) had any contact whatsoever with the attorney in the time period between the BIA’s dismissal of the administrative appeal and the expiration of the deadlines for filing either a motion for reconsideration with the BIA or a petition for review with this Court.
We also agree with Petitioner that the BIA’s treatment of ineffectiveness in its March 7, 2008 decision was less than thorough. When examining a claim of ineffective assistance of counsel, the BIA “must at least show that it has reviewed the record and grasped the movant’s claims.” Filja v. Gonzales, 447 F.3d 241, 256 (3d Cir.2006) (citing Sevoian v. Ashcroft, 290 F.3d 166, 178 (3d Cir.2002)). In Filja, the BIA failed to meet its procedural review obligations by rejecting the petitioner’s ineffective assistance argument in a “formu*240laic statement that ‘we have carefully reviewed the record,’ ” followed by one paragraph in which its only substantive finding was that the petitioner “failed to demonstrate that his former counsel’s performance was so inadequate that it prejudiced the outcome of the proceedings.” Id. Because the BIA’s opinion contained no statements indicating it had in fact carefully reviewed the record, or grasped Filja’s claims, it was inadequate to survive appellate review. Id.; see also Kayembe v. Ashcroft, 334 F.3d 231, 238 (3d Cir. 2003) (“When deficiencies in the BIA’s decision make it impossible for us to meaningfully review its decision, we must vacate that decision and remand so that the BIA can further explain its reasoning.” (citation omitted)).
In its March 7, 2008 decision, the BIA similarly provided a curt, one-paragraph analysis of Petitioner’s ineffective assistance claims in this case. The BIA stated “the [Petitioner] ha[s] not adequately demonstrated that [her] former counsel’s performance was deficient or that [she] suffered any prejudice.” (AR16.) The BIA’s conclusion that Petitioner failed to demonstrate any deficiency in her prior counsel’s performance is a conclusory “formulaic statement” without further support demonstrating a review of Petitioner’s arguments or the record. If this were the sole basis for the BIA’s denial of the ineffective assistance claims, it would be inadequate under Fiíja and would necessitate remand. But this is not the only basis for the decision. The BIA also concluded that Petitioner failed to show prejudice. As support for this conclusion, the BIA noted the conflicting testimony in Petitioner’s affidavit in support of her motion to reopen as further reinforcement of the IJ’s adverse credibility determination. Specifically, in her affidavit, Petitioner averred that she had been forcibly sterilized while in China, which contradicted her prior statements that it was her husband who had been forcibly sterilized and that she herself feared forcible sterilization if she were returned to China. Because this inconsistency goes to the heart of Li’s claim, the BIA did not err when it held that Li failed to show prejudice.
IV.
We accordingly will deny the petition for review.
. The government argues that Petitioner possessed no rights to effective counsel in this civil immigration context and that her whole ineffectiveness theory accordingly must be rejected as a matter of law. Because we find that the BIA properly rejected this ineffectiveness theory on the substantive grounds that Petitioner failed to establish either deficient performance or prejudice, we need not (and do not) consider the government's broader argument at this time.
. Petitioner also unsuccessfully sought reopening on the basis of changed country conditions. She, however, has waived any "changed country conditions” argument by failing to raise this theory of relief in her brief. See, e.g., Nagle v. Alspach, 8 F.3d 141, 143 (3d Cir.1993). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479756/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rory Mayberry and Robert Isakson appeal the district court’s order accepting the recommendation of the magistrate judge, granting the motion for Fed. R.Civ.P. 37 sanctions, dismissing this action with prejudice, and awarding reasonable expenses and fees to Defendants. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court in its opinion from the bench. Mayberry v. Battles, No. l:06-cv-00364-LO-TCB (E.D.Va. Oct. 10, 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/8479758/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Freddie Blackmon, Jr., appeals the district court’s order denying his 18 U.S.C. § 3582(c) (2006) motion. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Blackmon, No. 5:02-cr-00034-RLV-7 (W.D.N.C. Feb. 26, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479764/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard K. Revely appeals the district court’s order granting Defendants summary judgment in his 42 U.S.C. § 1983 *298(2006) action against them and entering-judgment in their favor. We have reviewed the record and find no reversible error. Accordingly, we deny Revely’s motions for appointment of counsel and Defendants’ motion to strike Revely’s informal brief and affirm the district court’s judgment. Revely v. City of Huntington, No. 3:07-cv-00648, 2009 WL 1097972 (S.D.W.Va. Apr. 23, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479766/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Harold H. Hodge, Jr., and Chante’ N. Hodge appeal the district court’s order dismissing their civil action pursuant to 28 U.S.C. § 1915(e) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Hodge v. Calvert County, No. 8:09-cv-02252-PJM, 2009 WL 2884928 (D.Md. Sept. 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/8479768/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Willis A. Brailey appeals the district court’s final judgment in favor of his former employer after a bench trial on his federal discrimination claims. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s judgment. Brailey v. Advance Am. Cash Advance Ctrs. of VA, Inc., 3:08-cv-00365-RLW (E.D.Va. July 27, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479770/ | *301Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cecil Simmons appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we deny Simmons’s motion for appointment of counsel and affirm for the reasons stated by the district court. Simmons v. Ozmint, No. 6:08-cv-00860-RBH, 2009 WL 4730628 (D.S.C. Dec. 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/8479772/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jamel Green appeals the district court’s oi’der denying his motion to reconsider the court’s earlier order granting his 18 U.S.C. § 3582(c)(2) (2006) motion for a reduction in sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm. See United States v. Goodwyn, 596 F.3d 233, 234-36 (4th Cir.2010) (holding that district court lacked authority to grant defendant’s motion to reconsider, filed eight months after the district court’s order ruling on original § 3582(c)(2) motion). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479774/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eunice Husband appeals the district court’s order dismissing without prejudice 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) for failure to pay a partial filing fee. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Husband v. Kornbrath, No. 5:09-ev-00098-JRG-JES (N.D.W.Va. Nov. 16, 2009). We dispense with oral argument because the facts and legal contentions are-adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479776/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Leonard Olszowy and Anna Olszowy seek to appeal the district court’s order adopting in part and rejecting in part the magistrate judge’s recommendation to dismiss the Olszowys’ claims against all but two Defendants. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 *308U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order the Olszow-ys’ seek to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479767/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Harold H. Hodge, Jr., and Chante’ N. Hodge appeal the district court’s order dismissing their civil action pursuant to 28 U.S.C. § 1915(e) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Hodge v. Calvert County, No. 8:09-cv-02252-PJM, 2009 WL 2884928 (D.Md. Sept. 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/8479769/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Willis A. Brailey appeals the district court’s final judgment in favor of his former employer after a bench trial on his federal discrimination claims. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s judgment. Brailey v. Advance Am. Cash Advance Ctrs. of VA, Inc., 3:08-cv-00365-RLW (E.D.Va. July 27, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479771/ | *301Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cecil Simmons appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we deny Simmons’s motion for appointment of counsel and affirm for the reasons stated by the district court. Simmons v. Ozmint, No. 6:08-cv-00860-RBH, 2009 WL 4730628 (D.S.C. Dec. 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/8479773/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jamel Green appeals the district court’s oi’der denying his motion to reconsider the court’s earlier order granting his 18 U.S.C. § 3582(c)(2) (2006) motion for a reduction in sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm. See United States v. Goodwyn, 596 F.3d 233, 234-36 (4th Cir.2010) (holding that district court lacked authority to grant defendant’s motion to reconsider, filed eight months after the district court’s order ruling on original § 3582(c)(2) motion). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479775/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eunice Husband appeals the district court’s order dismissing without prejudice 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) for failure to pay a partial filing fee. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Husband v. Kornbrath, No. 5:09-ev-00098-JRG-JES (N.D.W.Va. Nov. 16, 2009). We dispense with oral argument because the facts and legal contentions are-adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479777/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Leonard Olszowy and Anna Olszowy seek to appeal the district court’s order adopting in part and rejecting in part the magistrate judge’s recommendation to dismiss the Olszowys’ claims against all but two Defendants. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 *308U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order the Olszow-ys’ seek to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479778/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Abdul-Aziz Rashid Muhammad appeals the district court’s order accepting the magistrate judge’s recommendation and denying relief on Muhammad’s 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 affirm for the reasons stated by the district court. Muhammad v. Lappin, No. 2:07-cv-00018-REM-JSK, 2009 WL 3063310 (N.D.W.Va. Sept. 23, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479780/ | PER CURIAM: *
The Federal Public Defender appointed to represent Tony Mosley 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). Mosley has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 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 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479782/ | PER CURIAM: *
The Federal Public Defender appointed to represent Jose Alvaro Mendez-Perez 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). Mendez-Perez has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479785/ | PER CURIAM: *
The Federal Public Defender appointed to represent Donald Ray Vanderbilt 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). Vanderbilt has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEALS ARE DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479787/ | PER CURIAM: *
The attorney appointed to represent Robert G. Britton 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). Britton has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479789/ | ORDER
After Tony Gladney admitted to violating conditions of his supervised release, the district court revoked his supervision and ordered him to serve an additional 60 months’ imprisonment. Gladney appeals, but his appointed counsel has concluded that the appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Gladney has not responded to counsel’s motion, so we review only the potential issues counsel identifies in his facially adequate brief. See Cir. R. 51(b); *534United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Gladney pleaded guilty in 1999 to one count of conspiring to distribute crack cocaine. See 21 U.S.C. §§ 846, 841(a)(1). He faced a statutory minimum of 10 years in prison and a maximum of life imprisonment; his guidelines range was 188 to 235 months. The district court imposed a 192-month term of imprisonment and a 5-year term of supervised release. Gladney’s prison term was reduced in 2001 to 128 months because he provided substantial assistance to the government, and his supervised release began in November 2007. Gladney failed to comply with several conditions of his supervision, so in May 2008 the court modified his supervision and placed him in a halfway house for up to 180 days.
That modification did not deter further violations, and in August 2009 the probation office petitioned for revocation. By then Gladney had violated at least six conditions of his supervision, including the condition that he not commit additional crimes. According to his probation officer, Gladney had committed five more offenses while on supervision, including first-degree murder, possession of a firearm by a felon, aggravated discharge of a firearm, and making false statements. At his revocation hearing, Gladney denied committing the murder but admitted the other crimes. He also admitted to violating four other conditions of his supervision: leaving the judicial district without permission, failing to report to his probation officer, failing to follow the probation officer’s directions, and associating with a felon without permission. In view of these uncontested violations, the government did not offer evidence about the murder, and the district court did not make a finding on that allegation.
Based on Gladney’s admissions, the district court revoked his supervised release and ordered him to serve a 60-month term of reimprisonment, the statutory maximum. See 18 U.S.C. §§ 3583(e)(3), 3559(a)(1); 21 U.S.C. §§ 846, 841(a)(1), (b)(l)(A)(iii). The reimprisonment range was 37 to 46 months, based on a Grade A violation (aggravated discharge of a firearm) and Gladney’s criminal-history category of IV. See U.S.S.G. §§ 7B1.1, 7B1.4. Gladney argued in mitigation that a federal judge and assistant United States attorney in St. Louis, Missouri, had told him that his supervised release would not be revoked if state authorities did not prosecute him for the new crimes, and he asked the court to abide by that understanding. He also insisted that he already had been punished for some of his violations; several of them — -making false statements, leaving the district without permission, failing to report to the probation officer, and failing to follow the probation officer’s instructions — were the same violations that led the court to place Gladney in the halfway house for 180 days. These arguments did not sway the court:
Mr. Gladney, even apart from the admissions to violations that you say that you were put in a halfway house and feel like you were punished for violating those, your plea to aggravated discharge of a firearm is a very serious offense. The Court notes that you received a 64-month Rule 35 reduction in your sentence for your cooperation with the Government in the judgment of this Court and you’ve [sic] continued violations of your supervised release, you threw all that away. The Court’s going to sentence you to the maximum of 60 months.
Counsel considers arguing on appeal that the district court should not have revoked Gladney’s supervised release in light of the assurances he allegedly re*535ceived from the judge and prosecutor in St. Louis. But Gladney did not back up his representation with evidence — not even his own testimony — so the district court had no basis to conclude that any promise had been made to him. Even if we assume that Gladney received such assurances and that he will not be prosecuted by state authorities, we would find his revocation proper. Refraining from crime was a mandatory condition of Gladney’s supervised release, see 18 U.S.C. § 3583(d), and the district court had authority to revoke his release once he committed those offenses, see id. at § 3583(e)(3). And a promise by a court or prosecutor in another judicial district could not bind the district court here, which sentenced Gladney originally and thus maintained ultimate authority over his supervised release. See United States v. Monteiro, 270 F.3d 465, 472 (7th Cir.2001); United States v. Lilly, 206 F.3d 756, 761-62 (7th Cir.2000).
Counsel also examines whether Gladney could challenge the reasonableness of his term of reimprisonment. Although a district court must consider the range established by U.S.S.G. § 7B1.4 and most of the factors in 18 U.S.C. § 3553(a) before imposing a term of reimprisonment, we would distui’b that term only if it was plainly unreasonable. See 18 U.S.C. § 3583(e); United States v. Berry, 583 F.3d 1032, 1034 (7th Cir.2009); United States v. Neal, 512 F.3d 427, 438 (7th Cir.2008).
It would be frivolous to argue that the term in this case is plainly unreasonable. The district court was aware of the guidelines range of 37 to 46 months but explained that 60 months was more appropriate because aggravated discharge of a firearm is a “very serious” offense and Gladney had thrown away the 64-month reduction he had earned for providing substantial assistance to the government. We have consistently approved of weighing the seriousness of the violation of supervised release when selecting a term of reimpris-onment, e.g., Neal, 512 F.3d at 438; United States v. Carter, 408 F.3d 852, 854-55 (7th Cir.2005); United States v. Salinas, 365 F.3d 582, 589 (7th Cir.2004), and district courts may impose longer terms of reimprisonment if the defendant previously benefited from a sentence reduction for providing substantial assistance, see U.S.S.G. § 7B1.4 cmt. n. 4; United States v. Hergott, 562 F.3d 968, 970 (8th Cir.2009); United States v. Bungar, 478 F.3d 540, 546 (3d Cir.2007). Moreover, as counsel recognizes, Gladney could not argue that the district court unreasonably refused to credit him with the 180 days he spent at the halfway house. See U.S.S.G. § 7B 1.5(b) (“Upon revocation of supervised release, no credit shall be given (toward any term of imprisonment ordered) for time previously served on post-release supervision.”).
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/8479791/ | ORDER
Marylynn Dixon filed for judicial review of a decision of the Social Security Commissioner denying her disability benefits. Dixon never served the defendant, however. Eleven months later, the district court issued a “Notice of Impending Dismissal” informing her that she needed to serve the defendant or, if service had been perfected, seek default. Dixon did not perfect service but sought default anyway. Three additional months later the court again warned her that she needed to perfect service or the case would be dismissed for lack of prosecution. Dixon did nothing, so the court dismissed the case. Two years later Dixon filed a cursory motion to vacate, claiming generally that she “did not receive the Notice of Electronic Filings” and did not know of the order threatening dismissal or the subsequent order dismissing the case. The court construed the motion as being brought under Fed. R. Civ. P. 60(b), and denied the motion. The court found that the “docketing information belie[d]” Dixon’s assertion that she had no notice of the court’s warning of dismissal, and that the two-year passage of time between the dismissal and the motion to vacate was unreasonable.
On appeal Dixon argues that her Rule 60(b) motion was not dilatory and that she is entitled to relief because she did not know about the orders threatening dismissal and dismissing her case. But relief under Rule 60(b) is an “extraordinary remedy” and “granted only in exceptional circumstances,” Eskridge v. Cook County, 577 F.3d 806, 809 (7th Cir.2009) (quoting McCormick v. City of Chi., 230 F.3d 319, 327 (7th Cir.2000)). Here Dixon offered nothing other than her “bald allegation, unsupported by any proof,” such as an affidavit, that she did not receive the notice; under the circumstances, the district court acted within its discretion in denying the motion. See Ingram v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 371 F.3d 950, 952 (7th Cir.2004).
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479794/ | PER CURIAM.
In these consolidated appeals, Mary Seals and Angela Harris appeal the adverse judgment of the District Court1 following a bench trial in their employment-discrimination actions. Seals has moved for preparation of a transcript at government expense. We find that a transcript is unnecessary to our review because both appellants briefed them appeal without a transcript and neither appellant challenges the sufficiency of the evidence. See Bistram v. United States, 248 F.2d 343, 347-48 (8th Cir.1957) (noting that a transcript at government expense was unnecessary where the plaintiff did not challenge the sufficiency of the evidence to sustain the district court’s findings). Having carefully reviewed the parties’ arguments and the submissions on appeal, we find no basis for reversal. Accordingly, we affirm the District Court’s judgment, see 8th Cir. R. 47B, and we deny Seals’s motion.
. The Honorable J. Leon Holmes, Chief Judge, United States District Court for the Eastern District of Arkansas. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479779/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Abdul-Aziz Rashid Muhammad appeals the district court’s order accepting the magistrate judge’s recommendation and denying relief on Muhammad’s 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 affirm for the reasons stated by the district court. Muhammad v. Lappin, No. 2:07-cv-00018-REM-JSK, 2009 WL 3063310 (N.D.W.Va. Sept. 23, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479781/ | PER CURIAM: *
The Federal Public Defender appointed to represent Tony Mosley 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). Mosley has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 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 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479786/ | PER CURIAM: *
The Federal Public Defender appointed to represent Donald Ray Vanderbilt 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). Vanderbilt has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEALS ARE DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479788/ | PER CURIAM: *
The attorney appointed to represent Robert G. Britton 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). Britton has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479790/ | ORDER
After Tony Gladney admitted to violating conditions of his supervised release, the district court revoked his supervision and ordered him to serve an additional 60 months’ imprisonment. Gladney appeals, but his appointed counsel has concluded that the appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Gladney has not responded to counsel’s motion, so we review only the potential issues counsel identifies in his facially adequate brief. See Cir. R. 51(b); *534United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Gladney pleaded guilty in 1999 to one count of conspiring to distribute crack cocaine. See 21 U.S.C. §§ 846, 841(a)(1). He faced a statutory minimum of 10 years in prison and a maximum of life imprisonment; his guidelines range was 188 to 235 months. The district court imposed a 192-month term of imprisonment and a 5-year term of supervised release. Gladney’s prison term was reduced in 2001 to 128 months because he provided substantial assistance to the government, and his supervised release began in November 2007. Gladney failed to comply with several conditions of his supervision, so in May 2008 the court modified his supervision and placed him in a halfway house for up to 180 days.
That modification did not deter further violations, and in August 2009 the probation office petitioned for revocation. By then Gladney had violated at least six conditions of his supervision, including the condition that he not commit additional crimes. According to his probation officer, Gladney had committed five more offenses while on supervision, including first-degree murder, possession of a firearm by a felon, aggravated discharge of a firearm, and making false statements. At his revocation hearing, Gladney denied committing the murder but admitted the other crimes. He also admitted to violating four other conditions of his supervision: leaving the judicial district without permission, failing to report to his probation officer, failing to follow the probation officer’s directions, and associating with a felon without permission. In view of these uncontested violations, the government did not offer evidence about the murder, and the district court did not make a finding on that allegation.
Based on Gladney’s admissions, the district court revoked his supervised release and ordered him to serve a 60-month term of reimprisonment, the statutory maximum. See 18 U.S.C. §§ 3583(e)(3), 3559(a)(1); 21 U.S.C. §§ 846, 841(a)(1), (b)(l)(A)(iii). The reimprisonment range was 37 to 46 months, based on a Grade A violation (aggravated discharge of a firearm) and Gladney’s criminal-history category of IV. See U.S.S.G. §§ 7B1.1, 7B1.4. Gladney argued in mitigation that a federal judge and assistant United States attorney in St. Louis, Missouri, had told him that his supervised release would not be revoked if state authorities did not prosecute him for the new crimes, and he asked the court to abide by that understanding. He also insisted that he already had been punished for some of his violations; several of them — -making false statements, leaving the district without permission, failing to report to the probation officer, and failing to follow the probation officer’s instructions — were the same violations that led the court to place Gladney in the halfway house for 180 days. These arguments did not sway the court:
Mr. Gladney, even apart from the admissions to violations that you say that you were put in a halfway house and feel like you were punished for violating those, your plea to aggravated discharge of a firearm is a very serious offense. The Court notes that you received a 64-month Rule 35 reduction in your sentence for your cooperation with the Government in the judgment of this Court and you’ve [sic] continued violations of your supervised release, you threw all that away. The Court’s going to sentence you to the maximum of 60 months.
Counsel considers arguing on appeal that the district court should not have revoked Gladney’s supervised release in light of the assurances he allegedly re*535ceived from the judge and prosecutor in St. Louis. But Gladney did not back up his representation with evidence — not even his own testimony — so the district court had no basis to conclude that any promise had been made to him. Even if we assume that Gladney received such assurances and that he will not be prosecuted by state authorities, we would find his revocation proper. Refraining from crime was a mandatory condition of Gladney’s supervised release, see 18 U.S.C. § 3583(d), and the district court had authority to revoke his release once he committed those offenses, see id. at § 3583(e)(3). And a promise by a court or prosecutor in another judicial district could not bind the district court here, which sentenced Gladney originally and thus maintained ultimate authority over his supervised release. See United States v. Monteiro, 270 F.3d 465, 472 (7th Cir.2001); United States v. Lilly, 206 F.3d 756, 761-62 (7th Cir.2000).
Counsel also examines whether Gladney could challenge the reasonableness of his term of reimprisonment. Although a district court must consider the range established by U.S.S.G. § 7B1.4 and most of the factors in 18 U.S.C. § 3553(a) before imposing a term of reimprisonment, we would distui’b that term only if it was plainly unreasonable. See 18 U.S.C. § 3583(e); United States v. Berry, 583 F.3d 1032, 1034 (7th Cir.2009); United States v. Neal, 512 F.3d 427, 438 (7th Cir.2008).
It would be frivolous to argue that the term in this case is plainly unreasonable. The district court was aware of the guidelines range of 37 to 46 months but explained that 60 months was more appropriate because aggravated discharge of a firearm is a “very serious” offense and Gladney had thrown away the 64-month reduction he had earned for providing substantial assistance to the government. We have consistently approved of weighing the seriousness of the violation of supervised release when selecting a term of reimpris-onment, e.g., Neal, 512 F.3d at 438; United States v. Carter, 408 F.3d 852, 854-55 (7th Cir.2005); United States v. Salinas, 365 F.3d 582, 589 (7th Cir.2004), and district courts may impose longer terms of reimprisonment if the defendant previously benefited from a sentence reduction for providing substantial assistance, see U.S.S.G. § 7B1.4 cmt. n. 4; United States v. Hergott, 562 F.3d 968, 970 (8th Cir.2009); United States v. Bungar, 478 F.3d 540, 546 (3d Cir.2007). Moreover, as counsel recognizes, Gladney could not argue that the district court unreasonably refused to credit him with the 180 days he spent at the halfway house. See U.S.S.G. § 7B 1.5(b) (“Upon revocation of supervised release, no credit shall be given (toward any term of imprisonment ordered) for time previously served on post-release supervision.”).
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/8479792/ | ORDER
Marylynn Dixon filed for judicial review of a decision of the Social Security Commissioner denying her disability benefits. Dixon never served the defendant, however. Eleven months later, the district court issued a “Notice of Impending Dismissal” informing her that she needed to serve the defendant or, if service had been perfected, seek default. Dixon did not perfect service but sought default anyway. Three additional months later the court again warned her that she needed to perfect service or the case would be dismissed for lack of prosecution. Dixon did nothing, so the court dismissed the case. Two years later Dixon filed a cursory motion to vacate, claiming generally that she “did not receive the Notice of Electronic Filings” and did not know of the order threatening dismissal or the subsequent order dismissing the case. The court construed the motion as being brought under Fed. R. Civ. P. 60(b), and denied the motion. The court found that the “docketing information belie[d]” Dixon’s assertion that she had no notice of the court’s warning of dismissal, and that the two-year passage of time between the dismissal and the motion to vacate was unreasonable.
On appeal Dixon argues that her Rule 60(b) motion was not dilatory and that she is entitled to relief because she did not know about the orders threatening dismissal and dismissing her case. But relief under Rule 60(b) is an “extraordinary remedy” and “granted only in exceptional circumstances,” Eskridge v. Cook County, 577 F.3d 806, 809 (7th Cir.2009) (quoting McCormick v. City of Chi., 230 F.3d 319, 327 (7th Cir.2000)). Here Dixon offered nothing other than her “bald allegation, unsupported by any proof,” such as an affidavit, that she did not receive the notice; under the circumstances, the district court acted within its discretion in denying the motion. See Ingram v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 371 F.3d 950, 952 (7th Cir.2004).
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479841/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Barry Lusk has made an original pro se motion for a writ of habeas corpus. Although we are authorized under 28 U.S.C. § 2241 (2006) to exercise jurisdiction over original petitions for habeas corpus relief, we are not required to do so and we typically decline to exercise such jurisdiction and instead transfer the matter to the appropriate district court. See Fed. R.App. P. 22(a). We will not transfer a habeas corpus motion unless the transfer would serve the interests of justice. See 28 U.S.C. § 1631 (2006). We conclude that a transfer in this matter would not be in the interests of justice.
Accordingly we deny the motion for an original writ of habeas corpus, and dismiss the proceeding.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479793/ | PER CURIAM.
In these consolidated appeals, Mary Seals and Angela Harris appeal the adverse judgment of the District Court1 following a bench trial in their employment-discrimination actions. Seals has moved for preparation of a transcript at government expense. We find that a transcript is unnecessary to our review because both appellants briefed them appeal without a transcript and neither appellant challenges the sufficiency of the evidence. See Bistram v. United States, 248 F.2d 343, 347-48 (8th Cir.1957) (noting that a transcript at government expense was unnecessary where the plaintiff did not challenge the sufficiency of the evidence to sustain the district court’s findings). Having carefully reviewed the parties’ arguments and the submissions on appeal, we find no basis for reversal. Accordingly, we affirm the District Court’s judgment, see 8th Cir. R. 47B, and we deny Seals’s motion.
. The Honorable J. Leon Holmes, Chief Judge, United States District Court for the Eastern District of Arkansas. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479796/ | MEMORANDUM **
Rodrigo Diaz-Lopez appeals from the 72-month sentence imposed following his guilty-plea conviction for illegal re-entry after deportation, in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm, but remand to correct the judgment.
Diaz-Lopez contends that the district court improperly considered certain personal characteristics at sentencing. We review for plain error, see United States v. Dallman, 533 F.3d 755, 761 (9th Cir.2008), and affirm because Diaz-Lopez has not established plain error by the district court, much less that consideration of these personal characteristics affected his substantial rights, see id. at 761-62.
Diaz-Lopez also contends that the sentence is substantively unreasonable. In light of the totality of the circumstances and the 18 U.S.C. § 3553(a) sentencing factors, the below-guideline sentence was not unreasonable. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).
In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000), we remand the case to the district court with instructions that it delete from the judgment the incorrect reference to § 1326(b). See United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir.2000) (remanding sua sponte to delete the reference to § 1326(b)).
AFFIRMED; REMANDED to correct judgment.
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/8479798/ | MEMORANDUM **
Osawaru Amen Aideyan, a native and citizen of Nigeria, petitions this court for review of the decision of the Board of Immigration Appeals (“BIA”) denying his motion to reopen sua sponte its March 5, 2002 decision, which dismissed Aideyan’s appeal from the Immigration Judge’s November 12, 1999 decision. We are without jurisdiction to review the BIA’s denial of a motion to reopen sua sponte under 8 C.F.R. § 3.2(a). Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002); see also Minasyan v. Mukasey, 553 F.3d 1224, 1229 (9th Cir.2009) (“This court does not have jurisdiction to review an alien’s claim that the BIA should have exercised its sua sponte power’ to reopen or reconsider a prior order.”) (internal quotation marks and alterations omitted).
PETITION DISMISSED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479799/ | MEMORANDUM **
We affirm for the reasons given by the magistrate judge in his order filed April 14, 2009.
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/8479803/ | MEMORANDUM **
Sajid Sheikh (“Sheikh”), a native and citizen of Pakistan, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his application for cancellation of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1).1 *699Because the BIA summarily affirmed the Immigration Judge’s (“IJ”) decision, we review the IJ’s decision as we would that of the BIA. Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir.2008). We grant the petition and remand.
The IJ found that Sheikh’s conviction for appropriation of lost property under Cal.Penal Code § 485 constituted a crime involving moral turpitude, and that, as a consequence, Sheikh was ineligible for cancellation of removal on two bases. First, the IJ found that Sheikh was ineligible because he was convicted of a crime involving moral turpitude, for which a sentence of one year or longer may be imposed, that was committed within five years of his date of admission. See 8 U.S.C. § 1227(a)(2). Second, the IJ found that Sheikh was ineligible because his “continuous physical presence” ended when he was convicted of a crime involving moral turpitude, and therefore Sheikh could not establish continuous presence in the United States for at least 10 years immediately preceding the date of his application for cancellation of removal. See 8 U.S.C. § 1229b(b)(l).
Sheikh lawfully entered the United States in 1986. In 1988, he was convicted of appropriating lost property in violation of Cal.Penal Code § 485. Sheikh’s § 485 conviction occurred within 5 years of his admission to the U.S., and he could have could have been sentenced to more than a year in jail. Accordingly, if Sheikh’s § 485 conviction was a crime involving moral turpitude, Sheikh is ineligible for cancellation of removal under 8 U.S.C. §§ 1227(a)(2) and 1229b (b)(1).
Sheikh contests the IJ’s determination that his § 485 conviction constitutes a crime involving moral turpitude, thereby rendering him ineligible for cancellation of removal under 8 U.S.C. §§ 1227(a)(2) and 1229b(b)(l). “We review the IJ’s legal determinations de novo.” Ramos-Lopez v. Holder, 563 F.3d 855, 858 (9th Cir.2009).
To determine whether Sheikh’s § 485 conviction is a crime involving moral turpitude, we apply the categorical approach, and if appropriate, the modified categorical approach, as outlined in Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Shepard v. United States, 544 U.S. 13, 16-17, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). See also Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1067, 1073 (9th Cir.2007) (en banc) (outlining the categorical and modified categorical approaches).
Theft offenses are categorically crimes involving moral turpitude only when the statute of conviction requires the “base, vile, or depraved” conduct of intending to permanently deprive the property owner. See, e.g., Alvarez-Reynaga v. Holder, 596 F.3d 534, 537 (9th Cir.2010); Castillo-Cruz v. Holder, 581 F.3d 1154, 1161 (9th Cir.2009). Section 485 does not require, by its plain language or as interpreted by California courts, an intent to permanently deprive an owner of property. See Cal.Penal Code § 485 (enumerated elements do not require intent to permanently deprive); Matter of B.H., No. GO30253, 2008 WL 2574476, *1, *3 (Cal. App. 4th. June 27, 2008) (affirming a § 485 conviction where intent to permanently deprive was neither identified nor established as an element of the crime).2 *700Therefore, a § 485 conviction is not categorically a crime involving moral turpitude.
Where, as here, a conviction does not constitute a predicate offense for immigration purposes under the categorical approach, we next determine whether to apply the modified categorical approach. See Navarro-Lopez, 503 F.3d at 1073. Where the statute of conviction is missing an element of the predicate offense altogether, our inquiry ends with the categorical approach and we do not apply the modified categorical approach. Id.; United States v. Jennings, 515 F.3d 980, 992 (9th Cir.2008). Here, we do not apply the modified categorical approach because § 485 is missing one of the elements of a crime involving moral turpitude. Specifically, § 485 does not require the “base, vile, or depraved” conduct of intending to permanently deprive the property owner. Thus, Sheikh’s § 485 conviction does not constitute a crime involving moral turpitude.
Because Sheikh’s § 485 conviction is not a crime involving moral turpitude, Sheikh is not statutorily ineligible for cancellation of removal under 8 U.S.C. §§ 1227(a)(2) or 1229b(b)(l). Sheikh is not ineligible under § 1227(a)(2) because he was not convicted of a crime involving moral turpitude. Sheikh is not ineligible under § 1229b(b)(l) because, as his § 485 is not a crime involving moral turpitude, his continuous presence in the U.S. ended when the government issued his Notice to Appear,3 not at the time of Sheikh’s § 485 conviction.4 See 8 U.S.C. § 1229b(b)(l).
We therefore GRANT Sheikh’s petition for review and REMAND to the BIA to consider whether, accepting that Sheikh was not convicted of a crime involving moral turpitude and that he can establish ten years of continuous physical presence, Sheikh can satisfy the remaining elements of eligibility for cancellation of removal under 8 U.S.C. § 1229b(b)(l). See, e.g., Blanco v. Muhasey, 518 F.3d 714, 720 (9th Cir.2008); Navarro-Lopez, 503 F.3d at 1074.
PETITION FOR REVIEW GRANTED; REMANDED TO THE BIA.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
. Our jurisdiction is not affected because Sheikh now raises a new argument in support of the claims he raised before the BIA. The claims Sheikh raises here are the same claims that he raised to the BIA. The claims are that IJ erred in concluding that Sheikh was ineligible for cancellation of removal pursuant 8 U.S.C. §§ 1227(a)(2) and 1229b(b)(l) based the IJ’s finding that Sheikh’s California conviction amounted to a crime involving moral turpitude. The only difference here is that Sheikh presents a new argument in support of those claims. This is permitted. See Vizcar-ra-Ayala v. Mukasey, 514 F.3d 870, 873 (9th Cir.2008) (recognizing that a petitioner may raise a new argument on appeal in support of a claim raised below to the BIA); Figueroa v. Mukasey, 543 F.3d 487, 492 (9th Cir.2008) (holding that the exhaustion doctrine is not applied "in a formalistic manner"); Socop-Gonzalez v. INS, 272 F.3d 1176, 1183-84 (9th Cir.2001) (holding that a petitioner sufficiently raised the issue of equitable tolling before the agency even though his brief did not contain the phrase "equitable tolling”); cf. Lebron v. Nat'l R.R. Passenger Corp., 513 U.S. 374, 379, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995) (explaining that "once a federal claim is properly presented, a party can make any argument in support of that claim....”); United States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir.2004) (same).
. With limited exceptions not applicable here, "an opinion of a California Court ... that is not certified for publication or ordered published must not be cited or relied on by a court or party in any other action.” Cal. Rule of Court 8.1115. The unpublished case cited here, however, is not relied on as authority, but instead is used only to illustrate that § 485 does not require an intent to permanently deprive an owner of property. See Castillo-Cruz, 581 F.3d at 1161 n. 9 ("unpublished cases are pertinent for showing that there is a 'realistic probability' that [a statute of conviction] has been and will be applied to conduct falling outside of the generic defini-*700lion of a crime involving moral turpitude.”) (internal citation omitted).
. Sheikh lawfully entered the United States in October 1986. With the exception of one short lawful trip to Pakistan in 1997, Sheikh has continuously lived in the United States since 1986. The government issued Sheikh’s Notice to Appear on February 29, 2003. Therefore, Sheikh can establish sixteen years of continuous presence.
. We also note that Sheikh's continuous presence did not end with his § 485 conviction because, as the IJ correctly found, the conviction falls under the “petty offense exception” of 8 U.S.C. § 1182(a)(2)(A)(ii)(II). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479804/ | CONLON, District Judge,
dissenting.
We lack jurisdiction to review the immigration judge’s determination that Sheikh’s conviction under California Penal Code § 485 constituted a crime of moral turpitude under 8 U.S.C. § 1227(a)(2). Sheikh did not challenge the moral turpitude finding in his appeal to the Board of Immigration Appeals. Rather, he acknowledged in his BIA notice of appeal that he had been convicted of a crime of moral turpitude. Because the moral turpitude issue is administratively unexhausted, we are without jurisdiction to address it. See Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir.2004).
Our jurisdiction is statutorily limited to the review of issues exhausted before the BIA. 8 U.S.C. § 1252(d)(1). The purpose of the exhaustion requirement is to give the administrative agency “a full opportunity to resolve a controversy or correct its own errors before judicial intervention.” *701Sagermark v. INS, 767 F.2d 645, 648 (9th Cir.1985). In order to satisfy the exhaustion requirement, a petitioner must put the BIA on notice of the specific issue, so the BIA has an opportunity to address it. Figueroa v. Mukasey, 543 F.3d 487, 492 (9th Cir.2008).
Sheikh’s BIA notice of appeal identified only one alleged error by the immigration judge: the calculation of his continuous physical presence in the United States. The notice of appeal stated, “although Mr. Sheikh committed a crime of moral turpitude in 1988, his continuous physical presence in the United States began to accrue anew after that event.” (emphasis added). He explicitly conceded that his conviction under § 485 constituted a crime of moral turpitude.
Sheikh could still have exhausted his administrative remedies by challenging the moral turpitude finding in his BIA brief. See Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir.2004) (per curiam). But he did not do so. In a comprehensive 17-page brief, Sheikh’s counsel presented thorough, well-supported arguments on several issues: (1) the application of the “stop-time” rule with respect to his continuous physical presence in the United States; (2) the legal effect of his advance parole status; and (3) the immigration judge’s treatment of the petty offense exception in 8 U.S.C. § 1182(a)(2)(A)(ii). His BIA brief simply did not challenge the immigration judge’s conclusion that a conviction under § 485 was a crime of moral turpitude.
Given the concession in his notice of appeal that he was convicted of a crime of moral turpitude and the absence of any contrary argument in his BIA brief, Sheikh cannot be deemed to have administratively exhausted a challenge to the immigration judge’s moral turpitude finding. When a petitioner files a BIA brief, “the BIA is entitled to look to the brief for an explication of the issues that petitioner is presenting to have reviewed.” Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir.2009) (en banc). Sheikh exhausted only the issues he raised and argued in his BIA brief. Id. Because he did not provide the BIA with fair notice of the moral turpitude issue, the BIA was deprived of an opportunity to review it. Whether or not Sheikh’s claim that the immigration judge erred is meritorious, he failed to exhaust BIA remedies. We are therefore deprived of jurisdiction to review the immigration judge’s moral turpitude finding. See 8 U.S.C. § 1252(d)(1); Abebe, 554 F.3d at 1208; Zara v. Ashcroft, 383 F.3d 927, 930-31 (9th Cir.2004); Barron, 358 F.3d at 677.
Nonetheless, the majority concludes that we may exercise jurisdiction because Sheikh is merely presenting a new argument to this court in support of an issue he presented to the BIA. It is true that a petitioner need not have raised the same precise argument before the BIA as long as he identified the issue forming the basis of his appeal. See Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 873 (9th Cir.2008); Zhang v. INS, 388 F.3d 713, 721 (9th Cir.2004). But the majority’s application of this principle is not supported by the record. Sheikh unambiguously conceded in his BIA notice of appeal that he was convicted of a crime of moral turpitude. The issues raised in Sheikh’s BIA brief were predicated on this concession. He maintained that 8 U.S.C. § 1229b(d)(l) did not prohibit his “continuous physical presence” clock from restarting after his moral turpitude conviction. Sheikh further argued the immigration judge erred in finding him ineligible for the petty offense exception; this statutory exception only comes into play if an alien has been convicted of a crime of moral turpitude. See 8 U.S.C. § 1182(a)(2)(A)(ii). Only now, in his petition to this court, does Sheikh argue that the immigration judge erred in classifying his § 485 conviction as morally *702turpitudinous. Sheikh is not presenting a new argument in support of an issue raised before the BIA; he is raising an entirely new issue.
Because the majority reviews a moral turpitude issue not properly before the court, I respectfully dissent. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479807/ | JUDGMENT
PER CURIAM.
THIS CAUSE having been heard and considered, it is
Ordered and Adjudged:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479812/ | SUMMARY ORDER
After our decision in Shady Grove Orthopedic Assocs., PA. v. Allstate Ins. Co., 549 F.3d 137 (2008), plaintiffs Shady Grove Orthopedic Associates, P.A., petitioned the Supreme Court for a writ of certiorari. The Supreme Court granted the writ of certiorari and then reversed the decision of this Court. See 556 U.S. -, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010).
We now VACATE the judgment of the District Court and REMAND for further proceedings consistent with the opinion of the Supreme Court.
The mandate shall issue forthwith. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479795/ | MEMORANDUM **
Rodrigo Diaz-Lopez appeals from the 72-month sentence imposed following his guilty-plea conviction for illegal re-entry after deportation, in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm, but remand to correct the judgment.
Diaz-Lopez contends that the district court improperly considered certain personal characteristics at sentencing. We review for plain error, see United States v. Dallman, 533 F.3d 755, 761 (9th Cir.2008), and affirm because Diaz-Lopez has not established plain error by the district court, much less that consideration of these personal characteristics affected his substantial rights, see id. at 761-62.
Diaz-Lopez also contends that the sentence is substantively unreasonable. In light of the totality of the circumstances and the 18 U.S.C. § 3553(a) sentencing factors, the below-guideline sentence was not unreasonable. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).
In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000), we remand the case to the district court with instructions that it delete from the judgment the incorrect reference to § 1326(b). See United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir.2000) (remanding sua sponte to delete the reference to § 1326(b)).
AFFIRMED; REMANDED to correct judgment.
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/8479800/ | MEMORANDUM **
We affirm for the reasons given by the magistrate judge in his order filed April 14, 2009.
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/8479801/ | MEMORANDUM **
Sajid Sheikh (“Sheikh”), a native and citizen of Pakistan, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his application for cancellation of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1).1 *699Because the BIA summarily affirmed the Immigration Judge’s (“IJ”) decision, we review the IJ’s decision as we would that of the BIA. Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir.2008). We grant the petition and remand.
The IJ found that Sheikh’s conviction for appropriation of lost property under Cal.Penal Code § 485 constituted a crime involving moral turpitude, and that, as a consequence, Sheikh was ineligible for cancellation of removal on two bases. First, the IJ found that Sheikh was ineligible because he was convicted of a crime involving moral turpitude, for which a sentence of one year or longer may be imposed, that was committed within five years of his date of admission. See 8 U.S.C. § 1227(a)(2). Second, the IJ found that Sheikh was ineligible because his “continuous physical presence” ended when he was convicted of a crime involving moral turpitude, and therefore Sheikh could not establish continuous presence in the United States for at least 10 years immediately preceding the date of his application for cancellation of removal. See 8 U.S.C. § 1229b(b)(l).
Sheikh lawfully entered the United States in 1986. In 1988, he was convicted of appropriating lost property in violation of Cal.Penal Code § 485. Sheikh’s § 485 conviction occurred within 5 years of his admission to the U.S., and he could have could have been sentenced to more than a year in jail. Accordingly, if Sheikh’s § 485 conviction was a crime involving moral turpitude, Sheikh is ineligible for cancellation of removal under 8 U.S.C. §§ 1227(a)(2) and 1229b (b)(1).
Sheikh contests the IJ’s determination that his § 485 conviction constitutes a crime involving moral turpitude, thereby rendering him ineligible for cancellation of removal under 8 U.S.C. §§ 1227(a)(2) and 1229b(b)(l). “We review the IJ’s legal determinations de novo.” Ramos-Lopez v. Holder, 563 F.3d 855, 858 (9th Cir.2009).
To determine whether Sheikh’s § 485 conviction is a crime involving moral turpitude, we apply the categorical approach, and if appropriate, the modified categorical approach, as outlined in Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Shepard v. United States, 544 U.S. 13, 16-17, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). See also Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1067, 1073 (9th Cir.2007) (en banc) (outlining the categorical and modified categorical approaches).
Theft offenses are categorically crimes involving moral turpitude only when the statute of conviction requires the “base, vile, or depraved” conduct of intending to permanently deprive the property owner. See, e.g., Alvarez-Reynaga v. Holder, 596 F.3d 534, 537 (9th Cir.2010); Castillo-Cruz v. Holder, 581 F.3d 1154, 1161 (9th Cir.2009). Section 485 does not require, by its plain language or as interpreted by California courts, an intent to permanently deprive an owner of property. See Cal.Penal Code § 485 (enumerated elements do not require intent to permanently deprive); Matter of B.H., No. GO30253, 2008 WL 2574476, *1, *3 (Cal. App. 4th. June 27, 2008) (affirming a § 485 conviction where intent to permanently deprive was neither identified nor established as an element of the crime).2 *700Therefore, a § 485 conviction is not categorically a crime involving moral turpitude.
Where, as here, a conviction does not constitute a predicate offense for immigration purposes under the categorical approach, we next determine whether to apply the modified categorical approach. See Navarro-Lopez, 503 F.3d at 1073. Where the statute of conviction is missing an element of the predicate offense altogether, our inquiry ends with the categorical approach and we do not apply the modified categorical approach. Id.; United States v. Jennings, 515 F.3d 980, 992 (9th Cir.2008). Here, we do not apply the modified categorical approach because § 485 is missing one of the elements of a crime involving moral turpitude. Specifically, § 485 does not require the “base, vile, or depraved” conduct of intending to permanently deprive the property owner. Thus, Sheikh’s § 485 conviction does not constitute a crime involving moral turpitude.
Because Sheikh’s § 485 conviction is not a crime involving moral turpitude, Sheikh is not statutorily ineligible for cancellation of removal under 8 U.S.C. §§ 1227(a)(2) or 1229b(b)(l). Sheikh is not ineligible under § 1227(a)(2) because he was not convicted of a crime involving moral turpitude. Sheikh is not ineligible under § 1229b(b)(l) because, as his § 485 is not a crime involving moral turpitude, his continuous presence in the U.S. ended when the government issued his Notice to Appear,3 not at the time of Sheikh’s § 485 conviction.4 See 8 U.S.C. § 1229b(b)(l).
We therefore GRANT Sheikh’s petition for review and REMAND to the BIA to consider whether, accepting that Sheikh was not convicted of a crime involving moral turpitude and that he can establish ten years of continuous physical presence, Sheikh can satisfy the remaining elements of eligibility for cancellation of removal under 8 U.S.C. § 1229b(b)(l). See, e.g., Blanco v. Muhasey, 518 F.3d 714, 720 (9th Cir.2008); Navarro-Lopez, 503 F.3d at 1074.
PETITION FOR REVIEW GRANTED; REMANDED TO THE BIA.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
. Our jurisdiction is not affected because Sheikh now raises a new argument in support of the claims he raised before the BIA. The claims Sheikh raises here are the same claims that he raised to the BIA. The claims are that IJ erred in concluding that Sheikh was ineligible for cancellation of removal pursuant 8 U.S.C. §§ 1227(a)(2) and 1229b(b)(l) based the IJ’s finding that Sheikh’s California conviction amounted to a crime involving moral turpitude. The only difference here is that Sheikh presents a new argument in support of those claims. This is permitted. See Vizcar-ra-Ayala v. Mukasey, 514 F.3d 870, 873 (9th Cir.2008) (recognizing that a petitioner may raise a new argument on appeal in support of a claim raised below to the BIA); Figueroa v. Mukasey, 543 F.3d 487, 492 (9th Cir.2008) (holding that the exhaustion doctrine is not applied "in a formalistic manner"); Socop-Gonzalez v. INS, 272 F.3d 1176, 1183-84 (9th Cir.2001) (holding that a petitioner sufficiently raised the issue of equitable tolling before the agency even though his brief did not contain the phrase "equitable tolling”); cf. Lebron v. Nat'l R.R. Passenger Corp., 513 U.S. 374, 379, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995) (explaining that "once a federal claim is properly presented, a party can make any argument in support of that claim....”); United States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir.2004) (same).
. With limited exceptions not applicable here, "an opinion of a California Court ... that is not certified for publication or ordered published must not be cited or relied on by a court or party in any other action.” Cal. Rule of Court 8.1115. The unpublished case cited here, however, is not relied on as authority, but instead is used only to illustrate that § 485 does not require an intent to permanently deprive an owner of property. See Castillo-Cruz, 581 F.3d at 1161 n. 9 ("unpublished cases are pertinent for showing that there is a 'realistic probability' that [a statute of conviction] has been and will be applied to conduct falling outside of the generic defini-*700lion of a crime involving moral turpitude.”) (internal citation omitted).
. Sheikh lawfully entered the United States in October 1986. With the exception of one short lawful trip to Pakistan in 1997, Sheikh has continuously lived in the United States since 1986. The government issued Sheikh’s Notice to Appear on February 29, 2003. Therefore, Sheikh can establish sixteen years of continuous presence.
. We also note that Sheikh's continuous presence did not end with his § 485 conviction because, as the IJ correctly found, the conviction falls under the “petty offense exception” of 8 U.S.C. § 1182(a)(2)(A)(ii)(II). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479806/ | ORDER AND JUDGMENT*
JEROME A. HOLMES, Circuit Judge.
Plaintiff-Appellant Pamela Null appeals the district court’s adjudication of her claim for long-term disability (LTD) benefits and waiver of life insurance premiums under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001-1461. On appeal, Ms. Null contends that defendants’ termination of both her long-term disability (LTD) benefits and the waiver of life insurance premiums was not supported by substantial evidence and that the decision was unreasonable, arbitrary, and capricious. Specifically with respect to the LTD benefits, Ms. Null argues that defendants should have obtained vocational information about jobs available to her before terminating her benefits, and that they improperly relied *705on hearsay evidence of her medical condition to justify their decision to terminate. We have jurisdiction under 28 U.S.C. § 1291. Because we conclude that, under the circumstances of this case, consideration of vocational expert evidence is necessary, we reverse.
Background
Defendants are (i) Community Hospital Association, d/b/a Boulder Community Hospital, Ms. Null’s former employer and the plan administrator of an employee-welfare-benefits plan (Plan), as defined by ERISA, and (ii) Life Insurance Company of North America (LINA) which issued life insurance and long-term disability policies to defendant Community Hospital Association to provide benefits to Boulder Community Hospital’s eligible employees under its Plan. LINA made the decision to pay benefits to Ms. Null and to eventually terminate those benefits.
For approximately twenty years, Ms. Null was employed as a registered nurse by Community Hospital Association at the Boulder Community Hospital. In July 2002, Ms. Null applied for disability benefits, claiming severe, diffuse pain in various parts of her body. In August, she was diagnosed with persistent myalgia, Aplt. App. Vol. 6 at 601382, and was later diagnosed with chronic pain syndrome, id. Vol. 5 at 501218, and rheumatoid arthritis, id. Vol. 4 at 400959. In September 2000, LINA approved Ms. Null’s LTD application and a few months later granted her waiver of life insurance premiums (WOP) for the duration of her disability. Almost six years later, LINA terminated the LTD and WOP benefits, based partly on information that one of Ms. Null’s treating physicians, Dr. Robert Hynd, had released her to work.
Discussion
Standard of Review
After two unsuccessful appeals of the benefits determination, Ms. Null brought this action under 29 U.S.C. § 1132(a)(1)(B) asserting that the termination was arbitrary and capricious.1 The district court began its analysis by determining the standard of review. “When, as here, the district court’s determination of the standard of review did not require it to resolve any disputed historical facts, we do not defer to its determination but decide de novo what the standard of review should be.” Hancock v. Metro. Life Ins. Co., 590 F.3d 1141, 1146 (10th Cir.2009). We review “a denial of benefits challenged under § 1132(a)(1)(B) ... under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989).
Because the plan language failed to confer discretion upon LINA, as an assumed plan fiduciary,2 to determine whether a plan participant is disabled and eligible for LTD benefits, LINA’s decision to terminate Ms. Null’s LTD benefits is reviewed de novo. Id. Under that standard, the court’s role is to determine whether LINA made a correct decision based upon the administrative record before it when the decision was made. See Sperandeo v. Lor-*706illard Tobacco Co., 460 F.3d 866, 872 (7th Cir.2006).
In contrast to LINA’s lack of discretion when considering LTD benefits, the life-insurance component of the plan afforded LINA discretion to decide questions of eligibility for coverage or benefits under the plan and to make any related findings of fact. Because LINA had this discretion, we review the decision to terminate the WOP benefit under the arbitrary and capricious standard, meaning that we are limited to determining whether the decision was reasonable and made in good faith. Kellogg v. Metro. Life Ins. Co., 549 F.3d 818, 825-26 (10th Cir.2008). “We review a plan administrator’s decision to deny benefits to a claimant, as opposed to reviewing the district court’s ruling.” Holcomb v. Unum Life Ins. Co. of Am., 578 F.3d 1187, 1192 (10th Cir.2009).
Hearsay
One of the reasons LINA cited as a basis upon which to terminate Ms. Null’s benefits was a reported telephone conversation between its medical director, Dr. Manolakas, and Ms. Null’s rheumatologist, Dr. Hynd, in which the latter purportedly stated that Ms. Null was physically able to return to work.3 Ms. Null argues that LINA’s reliance on this alleged conversation is impermissible as it is based upon multiple hearsay.
The district court rejected this argument, citing cases holding that a plan administrator is not a court of law and thus is not bound by the rules of evidence, see, e.g., Speciale v. Blue Cross & Blue Shield Ass’n, 538 F.3d 615, 622 n. 4 (7th Cir. 2008); Karr v. Nat’l Asbestos Workers Pension Fund, 150 F.3d 812, 814 (7th Cir.1998), an issue not yet addressed in this circuit. The court also noted, however, that LINA’s disability decision was not based solely on Dr. Manolakas’s conversation with Dr. Hynd and that, therefore, the fact that Dr. Hynd’s statement may have been hearsay would not completely undermine LINA’s decision if, based on other evidence, it ultimately proved correct. We agree that LINA’s disability decision cannot be overturned simply because part of the evidence relied upon to reach it may have been based on hearsay. Because the written record included an opinion from Dr. Hynd that Ms. Null could return to work as long as she continued taking her medication and observed standing and lifting restrictions, Aplt. App. Vol. 3 at 300618, Ms. Null cannot prevail on her hearsay argument.
Proof of Ms. Null’s ability to do other work
Because LINA had paid LTD benefits to Ms. Null for more than twenty-four months, the Plan provided that she would be considered disabled “if [her] Injury or Sickness makes [her] unable to perform all the material duties of any occupation for which [she] may reasonably become qualified based on education, training or experience [the “any occupation” standard], or solely due to Injury or Sickness, [she is] unable to earn more than 80% of [her] Indexed Covered Earnings.” Aplt. App. Vol. 7 at 701503. The term “Sickness” is defined as “a physical or mental illness.” Id. at 701504.
Ms. Null argues that termination of her LTD benefits was incorrect because there is no evidence in the administrative record of any occupations available to her, given her education, training, or experience, nor is there any proof that she was able to obtain employment with a salary equal to *70780% of her Indexed Covered Earnings, or $3,620.61 per month. Id. Vol. 3 at 300674.
In holding that LINA rightfully terminated Ms. Null’s LTD benefits, the district court found that
[t]he medical records in the administrative record dating from October 2005 through May of 2006 do not show that plaintiff, by reason of her rhematoid [sic] arthritis, arthralgia and/or myalgia, was unable to perform all of the material duties of any occupation for which plaintiff was or might have reasonably become qualified based upon her education, training or experience or that solely due to her arthritis, arthralgia and/or myalgia she was unable to earn more than 80% of her Indexed Covered Earnings.
Aplt. App. Vol. 7 at 701560. Ms. Null argues that medical records alone could not establish her ability to perform different occupations and that the testimony of a vocational expert was required to establish that fact. She asserts that it was LINA’s obligation to secure such evidence.
Normally, with an initial disability claim, the plaintiff has the burden of establishing that she is unable to perform in any occupation. Torix v. Ball Corp., 862 F.2d 1428, 1431 (10th Cir.1988) (holding that a claimant is required “to establish a physical inability to follow any occupation from which he can earn a reasonably substantial income rising to the dignity of an income or livelihood, although the income may not be as much as was earned prior to the disability”). There is authority, however, that the burden shifts when the plan administrator is attempting to terminate benefits. See Gunderson v. W.R. Grace & Co. Long Term Disability Income Plan, 874 F.2d 496, 499 & n. 4 (8th Cir.1989) (holding that “before terminating benefits, the Plan should have obtained a vocational expert’s opinion to determine if [claimant] is presently capable, in light of his physical impairment, to perform ‘any occupation’ ” and observing that claimant met his burden when he proved his disability initially); see also Quinn v. Blue Cross & Blue Shield Ass’n, 161 F.3d 472, 476 (7th Cir.1998) (requiring plan administrator in termination case “to determine whether [claimant] was capable of performing another job with a salary level similar to her current job”).4 In either instance, at least in this circuit, “the plan administrator has a fiduciary duty to the insured to conduct an investigation and to seek out the information necessary for a fair and accurate assessment of the claim.” Rasenack ex rel. Tnbolet v. AIG Life Ins. Co., 585 F.3d 1311, 1324 (10th Cir.2009). Specifically with regard to this case, the plan administrator is responsible for gathering enough evidence to demonstrate that Ms. Null is able to perform other occupations. See Caldwell v. Life Ins. Co. of N. Am., 287 F.3d 1276, 1290 (10th Cir.2002).
In Caldivell, involving the same insurer defendant as the case at bar, this court construed a definition of disability substantially identical to the one here. It considered, as a matter of first impression, whether a plan administrator must consider vocational evidence when assessing a claim for disability benefits under an “any occupation” standard.
The court noted, in general, that
[d]etermining whether a claimant’s disability is so serious as to prevent him from performing, under LINA’s stan*708dard, “any occupation for which he is or may reasonably become qualified based on his education, training, or experience,” requires a complicated evaluation of a claimant’s abilities, skills, and education as well as an assessment of the labor market in the claimant’s geographic region. Vocational evidence — most typically from a vocational expert — regarding how the employee’s impairment [ajffects his ability to perform jobs other than that held prior to the onset of disability is often helpful in making this evaluation.
Id. at 1289 (citation omitted).
Caldwell rejected the plaintiffs contention that a plan administrator must always consider vocational evidence when assessing a claim for disability benefits under an “any occupation” standard, holding instead that
whether a claims administrator must consider vocational or occupational evidence in reaching its determination to deny a claimant “any occupation” benefits depends on the circumstances of the particular case and the terms of the benefits plan. If a claims administrator can garner substantial evidence to demonstrate that a claimant is, in fact, able to perform other occupations (within the definition set out by the insurer) in the open labor market, then consideration of vocational expert evidence is unnecessary.
Id. at 1290. Thus the determination of whether vocational or occupational assessment is required is decided on a case-by-case basis. Id. at 1289.
LINA argues that, because there was substantial medical evidence that Ms. Null’s physical condition had improved, it was justified in terminating her benefits on that basis alone, without reference to any vocational employment data. We disagree and hold that, given the circumstances of this case, Caldwell requires “the consideration of vocational expert evidence,” id. at 1290.
The “circumstances” of this case include two categories of evidence: medical evidence favoring both parties, and vocational evidence, largely favorable to Ms. Null. We will briefly summarize the medical evidence, which the district court discussed in detail. Ms. Null was approved for LTD benefits beginning in August 2000. By 2003, new medication was helping significantly, and Ms. Null was anticipating returning to work. Aplt. App. Vol. 4 at 400935. In 2005, a Functional Capacity Evaluation determined that Ms. Null could perform medium work for eight hours per day with a twenty-pound lifting restriction. Id. Vol. 3 at 300678.
In October 2005, Ms. Null’s primary care physician, Dr. Shaw, indicated that her rheumatoid arthritis was stable, her pain control was adequate, and that she could work, albeit for only three hours per day initially and ten to twelve hours per week ultimately. Id. at 300666-67; 300646. In February 2006, Dr. Shaw, noting Ms. Null’s joint inflammation, pain, and movement restrictions, stated that she could work four hours per day with no repetitive bending, kneeling, or lifting. Id. Vol. 3 at 300633.
In March 2006, Dr. Hynd, Ms. Null’s rheumatologist, reported that, while Ms. Null had problems with her lower back, her arthritis was in remission as long as she remained on Humira and that nothing prevented her return to work, with standing and lifting restrictions. Id. at 300618.
After her benefits were denied, Ms. Null saw Dr. Raul Romea, a rheumatologist with the Orthopedic Institute in Oklahoma City. Upon his initial examination in December 2006, Dr. Romea noted Ms. Null’s history of rheumatoid arthritis which he “[was] not convinced [was] active at the moment,” and found no significant synovi-*709tis.5 Id. Vol. 2 at 200416. Two months later, in February 2007, however, Dr. Ro-mea stated in writing that “Pam Null has Rheumatoid arthritis that is in active stage. I recommend Ms. Null work part-time sedentary for 4-6 hours a day.” Id. Vol. 3 at 300505. In April 2007, Dr. Ro-mea noted some synovitis in Ms. Null’s left ankle. Id. at 200360. By December of that year, an orthopedic surgeon specializing in foot and ankle surgery examined Ms. Null in connection with her “rheumatoid feet” and recommended surgical treatment. Id. Vol. 2 at 200306.
Ms. Null has also been under the care of Dr. Jacob Schwartz, a pain management specialist, since early 2003. Her records show long-term use of prescription narcotic pain medication beginning in 2003 with a ten-month course of oxycontin. Id. at 200439. Dr. Schwartz then switched her to methadone which she continued to take on a daily basis through the date LINA terminated her benefits. Id. at 200436-439.
LINA cites cases in which courts have affirmed the denial or termination of benefits without the benefit of vocational evidence. See, e.g., Morales-Alejandro v. Med. Card Sys., Inc., 486 F.3d 693 (1st Cir.2007); Duhon v. Texaco, Inc., 15 F.3d 1302 (5th Cir.1994); Block v. Pitney Bowes Inc., 952 F.2d 1450 (D.C.Cir.1992). We do not doubt that there are circumstances in which such evidence is not necessary. Indeed, as we recognized in Caldtvell, the matter is one for case-by-case determination. Where there is persuasive medical evidence that no disability exists, vocational evidence is considered unnecessary. In this case, however, the medical evidence is contradictory and far less clear than LINA suggests.
In addition to the medical evidence, the circumstances of this case include extensive evidence, much of it generated by LINA itself, that Ms. Null is unable to work at any occupation and is therefore disabled. After her benefits were terminated, Ms. Null secured the opinion of a rehabilitation consultant who reviewed her medical record, administered various occupational tests, and concluded that she “does not possess any significant transfer-rable job skills to sedentary type of work.” Aplt. App. Vol. 2 at 200373. The consultant agreed with the Social Security Administration “that Ms. Null is economically unemployable and unable to return to the workforce in any occupation for which she is qualified as a result of her age, education, work history, test scores, medical information and limitations from her impairments.” Id. at 200374.
In addition, LINA’s own internal vocational specialists agree that Ms. Null is unable to perform any occupation. In 2005, Margie Munoz, a vocational rehabilitation counselor employed by LINA, concluded that, despite a functional capacity evaluation that assessed her as able to perform full-time medium work with a twenty-pound lifting restriction, she could find no suitable positions that would meet Ms. Null’s skills, education, work history, and wage-replacement requirements. Id. Vol. 3 at 300673. Later that year, the same evaluator again concluded that, based on her lack of computer skills and education, there were no jobs that would meet Ms. Null’s wage requirements. Id. Vol. 1 at 100140. Also during 2005, Ms. Null’s primary care physician stated that she could not work. Id. at 100159.
In February 2006, LINA again commissioned an internal transferrable skills assessment. This time, the assessor, Alan *710Ely, stated that the “[f]ile is not a good potential RTW (return to work)” because the medical information and limitations- and-restrictions documentation needed to be updated. Id. at 100124. On May 1, 2006, presumably after having received the additional data, Mr. Ely concluded that there were “no occupations that the claimant could reasonably be expected to perform in the Oklahoma City labor market.” Id. at 100117. Some 3’/2 months later, LINA terminated Ms. Null’s benefits.
None of this negative vocational information is discussed in LINA’s two denials of Ms. Null’s appeals. ■ While the district court referred to the evidence, it did not analyze it with reference to the question of Ms. Null’s disability. As mentioned, the court concluded that Ms. Null’s medical records did not show an inability to perform any occupation or that, solely due to her impairments, she could not earn more than 80% of her Indexed Covered Earnings. That conclusion, however, was not based on evidence of available occupations, plaintiffs qualifications or work potential, or possible salaries in the relevant market. See Caldwell, 287 F.3d at 1289.
LINA could only avoid having to engage a vocational expert if it “could garner substantial evidence to demonstrate that [Ms. Null] is, in fact, able to perform other occupations ... in the open labor market.” See id. LINA has not garnered any information supporting such a conclusion; in fact, the weight of the evidence is to the contrary. Ignoring evidence relevant to a decision or failing to consider all the evidence in the record can lead to a conclusion that a benefits determination is arbitrary and capricious, see id. at 1284-86— that is, even more than just incorrect, which is the standard for de novo review. See Gaither v. Aetna Life Ins. Co., 388 F.3d 759, 773 (10th Cir.2004) (holding that “fiduciaries cannot shut their eyes to readily available information when the evidence in the record suggests that the information might confirm the beneficiary’s theory of entitlement and when they have little or no evidence in the record to refute that theory”). Given that the Plan’s operational definition of disability is completely dependent on whether a claimant can work at any occupation given his or her particular circumstances, LINA cannot base its decision that Ms. Null is not disabled solely on the basis of improvement in her medical condition.
LINA argues that, because disability has to be based on “injury or sickness,” and because Ms. Null’s condition has improved, she cannot be disabled (presumably because she is no longer “sick”). We acknowledge that there is evidence that Ms. Null’s arthritis had improved for a time. There is also evidence, however, that it became active again shortly after Dr. Hynd noted the remission. In addition, Ms. Null continued to see her pain management specialist, Dr. Schwartz, and there is no evidence that her pain had lessened; in fact, she continued to take methadone for generalized pain. Further, if a plaintiff meets her burden, as Ms. Null has done here with her rehabilitation consultant’s evidence that no jobs are available to her, “recovery may not be denied on the basis of overly restrictive interpretations of the plan’s language.” Torix, 862 F.2d at 1431.
“An ERISA fiduciary presented with a claim that a little more evidence may prove valid should seek to get to the truth of the matter.” Gaither, 388 F.3d at 774-75; see also Quinn, 161 F.3d at 476 (reversing and remanding a benefits determination where, although the administrator was not obligated to “undergo a full-blown vocational evaluation of [claimant’s] job[,]” she did need to “make a reasonable inquiry in[to] the types of skills [claimant] possessed] and whether those skills may be used at *711another job that can pay her the same salary range as her [current] job”).
Conclusion
As we held in Caldwell, we decide on a case-by-case basis whether a vocational or occupational assessment is required to resolve a challenge to a benefits determination. We find this case to be one requiring such evidence. We therefore REVERSE the district court’s determination as to Ms. Null’s LTD and WOP benefits claims and REMAND to the district court with instructions that it REMAND the matter to the LINA claims administrator for further findings of fact pursuant to the Plan’s standard for “any occupation” disability. LINA’s motion to strike new argument in appellant’s reply brief is DENIED as moot. In view of our remand, we DENY Ms. Null’s request for attorney’s fees and costs, presumably made under § 1132(b)(1), as unripe because several of the factors used in determining the appropriateness of such an award cannot be ascertained until LINA redetermines Ms. Null’s right to benefits. See Graham v. Hartford Life & Accident Ins. Co., 501 F.3d 1153, 1163 (10th Cir.2007).
After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. 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.
. 29 U.S.C. § 1132(a)(1)(B) provides that A civil action may be brought—
(1) by a participant or beneficiary—
(B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.
. The district court made the unchallenged assumption, without deciding, that LINA was a fiduciary with respect to the plan. We will also proceed under that assumption.
. Dr. Manolakas requested that Dr. Hynd reduce his opinion to writing, but Dr. Hynd did not respond to that request.
. We note that LINA’s life insurance policy requires the insured to prove continuing disability in order to avoid termination of the WOP benefit. See Aplt. App. Vol. 2 at 200247 The disability plan is more equivocal regarding the burden to prove eligibility for continuation of disability benefits, noting only that ”[w]e will require continued proof of your Disability for benefits to continue.” Id. Vol. 7 at 701494.
. Synovitis is the "[i'Jnflammation of a synovial membrane, especially that of a joint[.]” Stedman’s Medical Dictionary 1773 (27th ed. 2000). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479810/ | ON MOTION
ORDER
Oral arguments en banc for the above-noted appeals are scheduled for Tuesday, November 9, 2010, in courtroom 201. Appeal No.2008-1511, Therasense, et al. v. Becton Dickinson and Company, et al., will be argued at 10 a.m. Appeal No.2009-1374, Tivo, Inc. v. Echostar Corporation, et al., will be argued at 11 a.m. Counsel for each side for each appeal will be allowed 30 minutes to argue. Counsel for each party shall notify the clerk in writing by August 16, 2010, of the name of the attorney who will argue for that party. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479815/ | *128OPINION OF THE COURT
JORDAN, Circuit Judge.
Bradley Highbarger appeals from a judgment entered by the District Court of the Virgin Islands convicting him of two counts of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(B). On appeal, Highbarger argues that the District Court erred by denying his motion to suppress evidence obtained from his computers and another digital storage device. Because we write only for the benefit of the parties, we assume familiarity with the facts of this criminal case and the proceedings in the District Court. For the following reasons, we will affirm the judgment of conviction.
I. Background
On July 20, 2006, federal agents searched Highbarger’s residence pursuant to two warrants.1 The agents seized several items, including a Compaq central processing unit tower, a generic central processing unit tower, and a Lexar USB storage device (collectively, “the computers and the digital storage device”). On August 25, 2006, federal agents applied for a separate warrant to search the seized computers and digital storage device for evidence of illegal drug dealing, specifically violations of 21 U.S.C. § 841.2 A magistrate judge approved the warrant the same day.
Pursuant to the August 25, 2006 warrant, Agent Hillary Hodge, the Resident Agent in Charge of the St. Thomas, Virgin Islands Division of the United States Department of Homeland Security, Immigration and Customs Enforcement, performed a search of the computers and the digital storage device. During the search, Agent Hodge, a certified digital forensic examiner, reviewed the graphic files on the computer, looking for images of drug-related activity. Upon reviewing one of the graphic files, Agent Hodge saw what appeared to be a picture of a young girl engaging in oral intercourse with an adult male. He then observed that there were several other graphic files that he had not viewed and terminated his search.
On October 3, 2006, Agent James Stone, a special agent for the United States Department of Homeland Security, Immigration and Customs Enforcement, applied for a warrant to search the hard drives of Highbarger’s computers for evidence of materials involving the sexual exploitation of children in violation of 18 U.S.C. § 2251(a), et seq. In support of the application, Agent Stone stated in an affidavit that the digital forensic examiner (i.e., Agent Hodge) had discovered “several dozen child pornography images” during the search performed pursuant to the August 25, 2006 warrant. (App. at 109.) He further stated that “the images were of young girls that appeared to be teenage or younger engaging in sexually explicit conduct.” Id. He included the statutory definition of sexually explicit conduct, but did not include a further description of the images the digital forensic examiner had seen or attach a copy of the images to his affidavit. A magistrate judge approved the warrant, and the computers and the digital storage device were searched. Although the number of images seized is not clear from the record before us, the government and Highbarger reached a conditional plea agreement acknowledging that the search of the computers and the digital storage device revealed approximately 78 video *129clips and more than 30 images of child pornography.
On February 15, 2007, a grand jury returned a five-count indictment charging Highbarger with two counts of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(B), two counts of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), and one count of attempting to transport child pornography in violation of 18 U.S.C. §§ 2252A(a)(l) and 2252A(b)(l). Highbarger moved to suppress any evidence obtained from his computers and digital storage devices, arguing that the seai'ch conducted by Agent Hodge exceeded the scope of the August 25, 2006 warrant, that the October 3, 2006 warrant was not supported by probable cause, that the October 3, 2006 warrant did not “save” evidence that was illegally obtained as a result of exceeding the scope of the August 25, 2006 warrant, and that the good faith exception to the exclusionary rule did not apply.
The District Court held an evidentiary hearing on the motion to suppress. At the hearing, both Agent Hodge and Agent Stone testified. Agent Hodge testified about the search he conducted pursuant to the August 25, 2006 warrant. He explained that he was searching the graphic files for evidence of drug-related activity using a program that allowed him to see approximately 26 thumbnail images of graphic files on his computer screen at one time. He further testified that he opened one of these graphic files and determined that it contained an image of a six or seven year-old female engaging in oral intercourse with an adult male. Agent Hodge testified that he then examined the other thumbnail images on the computer screen, and the similarity of those images to the image he had enlarged and viewed led him to suspect that the additional images also contained child pornography. After Agent Hodge’s testimony, Agent Stone also testified about his application for the October 3, 2006 warrant.
In a written order, the District Court denied Highbarger’s motion to suppress. The Court first concluded that Agent Hodge was performing a lawful search of Highbarger’s computer pursuant to the August 25, 2006 warrant when he discovered the first image of child pornography. The Court therefore declined to suppress that image. Next, the Court agreed with Highbarger that the October 3, 2006 warrant was not supported by probable cause and that the good faith exception did not apply. However, the Court held that the doctrine of inevitable discovery applied, reasoning that Agent Hodge could have lawfully continued his search for drug-related activity after he saw the first image of child pornography and would have inevitably discovered the additional images of child pornography during that search. Accordingly, the Court declined to suppress any of the evidence seized from the computers and the digital storage device.
After the District Court denied the motion to suppress, Highbarger pled guilty to two counts of 18 U.S.C. § 2252A(a)(2)(B) pursuant to a conditional plea agreement with the United States. The plea agreement preserved his right to appeal the District Court’s order denying his motion to suppress. The District Court sentenced Highbarger to a term of seventy-five months of imprisonment and a life term of supervised release. Highbarger filed a timely appeal.3
II. Discussion4
On appeal, Highbarger argues that the District Court erred by denying the *130motion to suppress, primarily contending that Agent Hodge’s search exceeded the scope of the August 25, 2006 warrant. The government responds that the District Court did not err by concluding that the doctrine of inevitable discovery is applicable. It further argues, in the alternative, that the October 3, 2006 warrant was supported by probable cause and that, in any case, the good faith exception to the exclusionary rule applies to the images seized pursuant to the October 3, 2006 warrant.
When reviewing a District Court’s order denying a motion to suppress, we review the Court’s factual findings for clear error and exercise plenary review over its application of law to those facts. See United States v. Bond, 581 F.3d 128, 133 (3d Cir.2009).
Preliminarily, it appears that Highbar-ger contests the District Court’s determination that Agent Hodge only reviewed one image that contained child pornography. As discussed above, the District Court found that Agent Hodge was searching the computer files for images of drug transactions when he saw the image containing child pornography. The Court also found that Agent Hodge “noted that the computer still contained several dozen un-reviewed images, and stopped his search.” (App. at 4.) This factual finding is supported by the record. On direct examination, Agent Hodge testified that he opened the first file containing child pornography but did not open any additional files. He did, however, state that he saw the thumbnails on his screen and, based on the similarity of the images, believed that they also contained child pornography. In his brief, Highbarger points to the cross-examination of Agent Hodge, in which the agent agreed that he told Agent Stone that several dozen images of child pornography were opened and viewed. Yet that answer, which appears to contradict his earlier testimony, seems to have resulted from confusion about the meaning of “viewed”— specifically, whether it referred to viewing the thumbnail images as they existed on the screen or enlarging and then viewing them. In any case, given the possibility of such confusion, the District Court did not clearly err in crediting the testimony that Agent Hodge gave during his direct examination.
Next, Highbarger argues that Agent Hodge exceeded the scope of the warrant by searching files with titles that indicated they did not contain evidence of drug-related activity. We believe that the District Court correctly decided that Agent Hodge was lawfully searching pursuant to the August 25, 2006 warrant when he discovered the first image of child pornography. As the District Court recognized, law enforcement officials who have obtained a warrant to search a computer are not required to limit their search in accordance with a suspect’s description of his files. See, e.g., United States v. Giberson, 527 F.3d 882, 889-90 (9th Cir.2008); United States v. Hill, 459 F.3d 966, 977-78 (9th Cir.2006). Suspects can easily hide information by mislabeling files, and, therefore, law enforcement officials are not required to accept a suspect’s designation of what is contained in a particular file. See Hill, 459 F.3d at 978 (“Forcing police to limit their searches to files that the suspect has labeled in a particular way would be much like saying police may not seize a plastic bag containing a powdery white substance if it is labeled ‘flour’ or ‘talcum powder.’” (quoting United States v. Hill, 322 F.Supp.2d 1081, 1090 (C.D.Cal.2004))).
Moreover, the warrant authorized Agent Hodge to search and seize “all documents, records and materials in whatever form” for evidence of violations of 21 U.S.C. § 841. (App. at 104.) During the eviden-tiary hearing, Agent Hodge testified that *131graphic images often contain evidence of drug-related activities and that he opened the graphic files in order to determine their contents. He was accordingly authorized by the warrant to open the graphic files on Highbarger’s computer when searching for evidence of drug-related activity. See Giberson, 527 F.3d at 889-90. Therefore, the District Court did not err in concluding that Agent Hodge did not exceed the scope of the August 25, 2006 warrant.
Once Agent Hodge had opened the graphic file that contained the image of child pornography, he was entitled to seize that image under the plain view doctrine. “Under that doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant.” Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (citations omitted). Accordingly, the District Court did not err in refusing to suppress that image of child pornography.
After Agent Hodge discovered that image, he stopped his search,5 and Agent Stone subsequently applied for the October 3, 2006 warrant to search for evidence of sexual exploitation of children in violation of 18 U.S.C. § 2251(a), et seq. The District Court held that the October 3, 2006 warrant was not supported by probable cause and that the good faith exception to the exclusionary rule did not apply. Because we conclude that the good faith exception does apply, we need not address the District Court’s analysis of the probable cause issue. See United States v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars and Fifty-Seven Cents, 307 F.3d 137, 145 (3d Cir.2002) (“[I]f a motion to suppress evidence obtained pursuant to a warrant does not present a Fourth Amendment argument that should be decided in order to provide instruction to law enforcement or to magistrate judges, it is appropriate for a reviewing court to turn ‘immediately to a consideration of the officers’ good faith.’ ” (quoting United States v. Leon, 468 U.S. 897, 925, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984))).
In United States v. Leon, the Supreme Court recognized a good faith exception to the exclusionary rule. The Court explained that the purpose of the exclusionary rule, i.e., the deterrence of Fourth Amendment violations, would not be served in a case where an officer “acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope” because “an officer cannot be expected to question the magistrate’s probable-cause determination....” 468 U.S. at 920-21, 104 S.Ct. 3405. In a recent decision, the Supreme Court further emphasized the limited scope of the exclusionary rule, explaining that it “serves to deter deliberate, reek-*132less, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” Herring v. United States, — U.S. -, 129 S.Ct. 695, 702, 172 L.Ed.2d 496 (2009). Thus, the Court held that it should only be applied when “police conduct [is] sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Id.
Nevertheless, the good faith exception does not apply where the affidavit is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Leon, 468 U.S. at 923, 104 S.Ct. 3405 (internal citations and quotations omitted); United States v. Stearn, 597 F.3d 540, 561 (3d Cir.2010). The District Court concluded that the good faith exclusion did not apply in this case because “[n]o objectively reasonable officer would rely on such scant support” as contained in the affidavit Agent Stone submitted when seeking the warrant. (App. at 13.) Although the District Court is correct that the affidavit was not as complete as it could and perhaps should have been, we disagree with its conclusion that the good faith exception does not apply.
In support of the application for the October 3, 2006 warrant, Agent Stone’s affidavit informed the magistrate judge that another law enforcement officer had discovered the images and concluded that they were images of child pornography. Agent Stone stated that the images were of “young girls that appeared to be teenage or younger engaging in sexually explicit conduct.” (App. at 109.) Importantly, this description was provided in the context of the affidavit quoting statutory language that defines sexually explicit conduct. The magistrate judge approved the warrant. Although it would have been better for Agent Stone to have provided a more detailed description of the content of a pornographic image, or an actual copy of one, we do not agree that Agent Stone’s belief in the validity of the warrant was objectively unreasonable. Given the Agent’s quoting of the relevant statutory language and the assertion that what was viewed was “sexually explicit conduct” as defined by the statute and was performed by someone of an age appearing young enough to be legally considered a child, it was not unreasonable for the Agent to believe that the affidavit was sufficient and to rely on the magistrate judge’s issuance of the warrant. See United States v. Grant, 490 F.3d 627, 633-34 (8th Cir.2007) (determining that the good faith exception applied where the affidavit stated that a computer repairman had viewed the images and concluded they were images of “child pornography,” even though the affidavit did not specifically describe the images). Accordingly, the good faith exception applies, and, though we have done so by a different route, we arrive at the same point the District Court did: the evidence obtained pursuant to the October 3, 2006 warrant should not be suppressed.6
III. Conclusion
We agree with the District Court, that Highbarger’s motion to suppress was ill-founded. We will therefore affirm the judgment of conviction.
. The searches of Highbarger's residence are not at issue in this appeal.
. Section 841(a)(1) makes it unlawful for "any person knowingly or intentionally ... to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.”
. Highbarger does not appeal the sentence imposed by the District Court.
. The District Court exercised jurisdiction under 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291.
. For this reason, Highbarger's reliance on United States v. Carey, 172 F.3d 1268 (10th Cir.1999), is misplaced. In Carey, the detective, like Agent Hodge here, inadvertently opened the first image of child pornography during a search of a computer for drug-related activity. Id. at 1271. But the factual similarities end there. Unlike Agent Hodge, who stopped searching at that point, the detective in Carey continued to search the images, even though he testified that, after seeing the first image, he had probable cause to believe that the additional images contained more child pornography. Id. The Tenth Circuit held that the detective exceeded the scope of the warrant and suppressed the seized evidence. Id. at 1276. The Court's holding, however, did not apply to the first image that was inadvertently seen and was "confined to the subsequent opening of numerous files the officer knew, or at least, expected, would contain images of child pornography.” Id. at 1273 n. 4.
. In light of our conclusion that the good faith exception applies to the evidence seized pursuant to the October 3, 2006 warrant, we need not decide whether the District Court erred by concluding that the doctrine of inevitable discovery applied to this case. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479818/ | OPINION
ALARCÓN, Circuit Judge.
Melissa Anspach and her parents (“the Anspachs”) sued the City of Philadelphia and certain employees of the City’s Department of Public Health (“Appellees”) for alleged violations of their First and Fourteenth Amendment rights to parental guidance, family privacy, and bodily integrity pursuant to 42 U.S.C. § 1983. The District Court concluded that the claims raised in the Anspachs’s amended complaint have already been litigated in both the district and circuit courts, and dismissed the Anspachs’s federal claims as barred under the doctrine of collateral es-toppel.1 The Anspachs have appealed that ruling as erroneous. We affirm.2
*182I
A
The underlying facts and procedural history are set forth in detail in Anspach I, 2005 WL 1519014 at *1-2, 2005 U.S. Dist. LEXIS 12546 at *2-5, Anspach II, 503 F.3d at 259-60, and in the order on appeal, Anspach v. City of Philadelphia, 630 F.Supp.2d 488, 489-90 (E.D.Pa.2008) (“An-spach III ”). The facts are known to the parties; accordingly, we limit our summary of them to those pertinent to the issues presented in this appeal. On January 26, 2004, sixteen-year-old Melissa An-spach visited the City of Philadelphia’s Public Health Center (“the Center”) and requested emergency “morning after” contraceptive pills. After talking to a social worker and signing a consent form, Melissa swallowed four contraceptive pills that were provided to her by Appellee Mary Gilmore, a registered nurse. Nurse Gilmore instructed Melissa to take another four pills twelve hours later. When Melissa asked Nurse Gilmore about availability of medication to alleviate the side-effects of the contraceptive pills, she indicated that there was no such medication available.
Upon taking the second dose of pills early the next morning, Melissa experienced severe stomach pain and began vomiting. After learning that Melissa had taken emergency contraception pills, her parents took her to a hospital emergency room. Melissa was released from the hospital the same day. She later returned to the hospital for treatment because of sub-conjunctive hemorrhaging in her eye that was apparently caused by excessive vomiting.
B
The Anspachs filed an action against the Appellees in state court pursuant to 42 U.S.C. § 1983 on February 10, 2005, in which they alleged Pennsylvania constitutional claims, state law test claims, and a cause of action for violation of the right to due process under the Fourteenth Amendment. Melissa’s parents alleged that their “constitutional rights to familial privacy, and to direct the reaiing and education of their minor children,” were violated by the Appellees. The complaint also alleged that the Appellees violated “Melissa’s constitutional right to receive her parents’ guidance and advice in matters relating to Melissa’s upbringing, privacy, religious beliefs and medical care.”
The Appellees removed this matter to federal court and filed a motion to dismiss the complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). The District Court dismissed the Anspachs’s § 1983 claims for lack of subject matter jurisdiction on the ground that “Plaintiffs [] failed to state a claim under federal law,” Anspach I, 2005 WL 1519014 at *1, 2005 U.S. Dist. LEXIS 12546 at *2, and remanded the Anspachs’s state law claims to the Philadelphia County Court of Common Pleas. That Court affirmed the District Court’s order. Anspach II, 503 F.3d at 274.
In conducting discovery in support of their remaining state claims, the Anspachs learned that Nurse Gilmore had misrepresented to Melissa that medication to alleviate the side-effects of contraception pills was unavailable, even though Nurse Gilmore knew of at least two medications that were used for these purposes. Based on this newly discovered evidence, the An-spachs filed an amended complaint in state court on May 5, 2008. They alleged that the Appellees violated Kurt and Karen Anspach’s “constitutional rights to familial privacy, and to direct the rearing, education and medical care of their minor children,” as well as “Melissa’s constitutional right to privacy, including her right to bodily integrity, her right to receive her *183parents’ guidance and advice in matters relating to Melissa’s upbringing, privacy, religious beliefs and medical care.” In addition, the Anspachs alleged in their amended complaint, that in distributing the “morning after pills” to Melissa, the Appellees also violated Title X of the Public Health Service Act, 42 U.S.C. §§ 300-300a-8.
The Appellees again removed the action to federal court. The Appellees filed a motion to dismiss the federal claims pursuant to Rule 12(b)(6). They asserted that the federal constitutional claims were barred by the doctrine of collateral estop-pel. The District Court concluded that the Anspachs’s substantive due process claims were barred by the doctrine of collateral estoppel. It also held that the Anspachs failed to state a claim under Title X. The District Court declined to exercise supplemental jurisdiction over the state law claims. The Anspachs appeal from the District Court’s rulings as to their parental guidance and bodily integrity claims, but do not challenge the dismissal of their Title X claims.
II
The Anspachs argue on appeal that the District Court erred in dismissing their federal due process claims as barred by the doctrine of collateral estoppel. They contend that Nurse Gilmore’s false statement to Melissa about the unavailability of anti-nausea medication creates a “new and qualitatively different factual setting” demonstrating “coercion, manipulation, or restraining conduct by the State” which supports their § 1983 claim. (Appellants’ Br. 37-38.) We review the district court’s application of the doctrine of collateral estop-pel for abuse of discretion. McLendon v. Cont’l Can Co., 908 F.2d 1171, 1177 (3d Cir.1990) (citing Parklane Hosiery, Inc. v. Shore, 439 U.S. 322, 331, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979)).
A
The doctrine of collateral estoppel requires a reviewing court to determine whether “(1) the identical issue was previously adjudicated; (2) the issue was actually litigated; (3) the previous determination was necessary to the decision; and (4) the party being precluded from relitigating the issue was fully represented in the prior action.” Raytech Corp. v. White, 54 F.3d 187, 190 (3d Cir.1995). “When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.” Jean Alexander Cosmetics, Inc. v. L’Oreal USA, Inc., 458 F.3d 244, 249 (3d Cir.2006) (quoting Restatement (Second) of Judgments § 27 (1982)).
In determining that the Anspachs were collaterally estopped from re-litigating the federal claims alleged in their amended complaint, the District Court concluded that, with the exception of the Title X claim, there were no differences in the allegations previously litigated by the An-spachs — against these same Appellees— and those in the amended complaint. Anspach III, 630 F.Supp.2d at 493. The District Court reasoned as follows:
the plaintiffs themselves do not dispute that they are re-asserting Melissa’s bodily integrity or her and her parents’ Fourteenth Amendment claims. Rather, they • allege only that their reassertion of these claims “is based on evidence that was unavailable and/or unknown to plaintiffs when plaintiffs drafted and filed their initial complaint.” Even if we were to assume for the sake of argument that such newly discovered evidence is a valid ground upon which to consider anew a previously adjudicated claim, at *184no time have the plaintiffs even revealed what this new evidence is.
Anspach III, 630 F.Supp.2d at 493 n. 5 (citation omitted).
The District Court determined that “the four elements required to invoke collateral estoppel [were] present,” Anspach III, 630 F.Supp.2d at 491, as to all of the issues that are raised in this appeal. We agree.
The Anspachs have conceded that they are “reasserting] Melissa Anspach’s bodily integrity claim and Mr. and Mrs. An-spach’s parental rights claims” that were previously litigated. (Appellants’ Br. 29.) The Anspachs also do not dispute that the previous determination was necessary to the decision, or that they were represented in the prior action. Their only argument in this appeal is that collateral estoppel does not apply to the allegation in their amended complaint because “the issues decided previously are' not identical with the issue raised by [their] amended complaint.” (Appellants’ Br. 33.)
Issues litigated in a prior action have preclusive effect if the controlling facts essential to the judgment remain unchanged in the later action. Montana v. United States, 440 U.S. 147, 159, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979); see also Comm’r of Internal Revenue Serv. v. Sunnen, 333 U.S. 591, 599-600, 68 S.Ct. 715, 92 L.Ed. 898 (1948) (collateral estoppel applies where “the matter raised in the second suit is identical in all respects with that decided in the first proceeding and where the controlling facts and applicable legal rules remain unchanged”). “To produce absolution from collateral estoppel on the ground of changed factual circumstances, the changes must be of a character and degree as might place before the court an issue different in some respect from the one decided in the initial ease.” EEOC v. American Airlines, 48 F.3d 164, 168 (5th Cir.1995).
The Anspachs argue that the issue presented in this matter is similar to the question addressed in Hawksbill Sea Turtle v. Fed. Emer. Mgmt. Agency, 126 F.3d 461 (3d Cir.1997). In Hawksbill Sea Turtle, this Court held that “when significant new facts grow out of a continuing course of conduct, the issues in a successive suit may fail to constitute the same ‘issue’ as to merit preclusive effect.” Id. at 477.3 The Anspachs maintain that the newly discovered evidence of Nurse Gilmore’s false *185statement to Melissa about the unavailability of anti-nausea medication creates a “new and qualitatively different factual setting,” similar to that found in Hawks-bin, because it demonstrates “manipulative and coercive conduct that this Court did not find in the initial complaint.”4 (Appellants Br. 37, 40.)
The Anspachs have not shown how Nurse Gilmore’s false statement significantly changes the controlling facts, or otherwise establishes coercion, manipulation, or restraining conduct by the State sufficient to bar the application of collateral estoppel. While the evidence of Nurse Gilmore’s false statement may be new, it is not “qualitatively different” from the factual allegations that were before the District Court and this Court in the prior litigation. In Anspach II, this Court held that the Anspachs failed to demonstrate a due process violation because “the conduct complained of was devoid of any form of constraint or compulsion.” 503 F.3d at 264. Nurse Gilmore’s false statement about the unavailability of pain pills is not significant enough to alter the controlling facts of this case. Accordingly, we conclude that the District Court did not abuse its discretion in concluding that federal constitutional claims raised in the Anspachs’s amended complaint are barred by the doctrine of collateral estoppel.
The District Court’s judgment is AFFIRMED.
. The Anspachs originally filed suit against these same defendants in a state court action filed in February 2005, alleging federal constitutional claims pursuant to 42 U.S.C. § 1983. Defendants removed the matter to federal court and moved to dismiss the claims pursuant to Fed.R.Civ.P. 12(b)(6). The District Court granted the motion, dismissing the Anspachs’s § 1983 claims for lack of subject matter jurisdiction on the ground that "Plaintiffs [] failed to state a claim under federal law.” Anspach v. City of Philadelphia, 2005 WL 1519014, at *1, 2005 U.S. Dist. LEXIS 12546, *2 (E.D. Pa. June 27, 2005) ("Anspach I”) aff'd Anspach v. City of Philadelphia, 503 F.3d 256 (3d Cir.2007) (“Anspach II") (affirming the District Court's ruling in a forty-seven-page published opinion).
. The District Court had jurisdiction over the Anspachs's 42 U.S.C. § 1983 claims pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over the Anspachs's state law claims under 28 U.S.C. § 1367. We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of a district court’s dismissal of a complaint under Rule 12(b)(6) is plenary. Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir.2007).
. The plaintiffs in Hawksbill filed two actions seeking to enjoin construction projects that threatened endangered sea turtles and snakes following a hurricane that had struck the island of St. Thomas in 1995. Id. at 463. In the first suit, Judge Finch denied the relief requested in part because he concluded that no Tree Boas existed on the project site. Id. at 465. Six months later, in the second action before Judge Brotman, plaintiffs presented “new and qualitatively different evidence” than that which was before Judge Finch. Id. Specifically, plaintiffs presented evidence of live, injured, and dead Tree Boas near the project site. Id. Judge Brotman gave preclu-sive effect to Judge Finch's prior order and held that plaintiffs were collaterally estopped from re-litigating their claim for federal protection of the endangered species. Id. at 464. The plaintiffs appealed. Id.
This Court reversed, holding that Judge Brotman erred in giving preclusive effect to Judge Finch's findings because “[u]nder these circumstances, it was incumbent upon Judge Brotman to ground his findings on the new evidence.” Id. at 465. This Court explained that "[c]ollateral estoppel applies ... when the same issues decided in the past action arise again in the present context, [but] when significant new facts grow out of a continuing course of conducl[,] the issues in a successive suit may fail to constitute the same 'issue' so as to merit preclusive effect.” Id. at 477 (citations omitted) (emphasis added).
This Court also held in Hawksbill that the first preliminary injunction hearing had no preclusive effect on the second one because evidence had recently come to the light that the construction project would last much longer than anticipated during the first hearing. Id. at 465.
. The Anspachs argue that Nurse Gilmore's false statement shows that she was motivated by a desire either to "keep Mr. & Mrs. An-spach in the dark about their daughter's health,” or, "to insure that Melissa swallowed the second batch of pills ... irrespective of the risk associated with this medication.” (Appellants' Br. 49; Appellants' Reply Br. 7.) The Anspachs offer no evidence in support of the motives they ascribe to Nurse Gilmore, and admit that they did not “spell out the two likely explanations for [Nurse] Gilmore's deception in their complaint.” (Appellants' Reply Br. at 9.) | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479813/ | OPINION
SMITH, Circuit Judge.
Billy Joe Reynolds pleaded guilty to one count of knowingly failing to register and update a registration, in violation of the Sex Offender Registration and Notification Act ("SORNA"), 18 U.S.C. § 2250. In this appeal, he challenges the constitutionality of SORNA and the legality of the Attorney General's Interim Rule implementing that law. See 72 Fed. Reg. 8894 (Feb. 28, 2007) (codified at 28 C.F.R. §~ 72.1-72.3). He also argues that his guilty plea should be invalidated because he is "actually innocent" of violating SORNA's registration requirements. We reject each of his arguments and will affirm the judgment of conviction.
First, Reynolds argues that SORNA's registration requirements exceed congressional power under the Commerce Clause. He also contends that punishing him for failing to comply with those requirements violates the Ex Post Facto Clause and offends due process. These claims are foreclosed by our decision in United States v. Shenandoah, 595 F.3d 151 (3d Cir.2010).
Second, Reynolds argues that SORNA's registration regime violates the Tenth Amendment. We decline to reach this argument because Reynolds lacks standing to raise it. Id. at 161-62.
Third, Reynolds asserts that the Interim Rule is invalid because it violates the NonDelegation Doctrine. He also notes that the Interim Rule was made effective immediately and promulgated without a 30-day notice and comment period, and maintains that such enactment was not justified under the "good cause" exceptions of 5 U.S.C. § 553(b)(3)(B) and (d)(3). We decline to reach these arguments as well. In Shenandoah, we held that the Interim Rule affected only those sex offenders who "did not have a registration `requirement prior to the passage of SOR-NA but nonetheless were subject to sex offender registration requirements after SORNA became law{.]" 595 F.3d at 163. We further held that the defendant, who was required to register as a sex offender under state law before SORNA was enacted-and was in fact so registered-lacked standing to challenge the Interim Rule. Id. at 163-64. Reynolds was likewise registered under state law before congress passed SORNA. Therefore, the Interim Rule did not apply to him, and he lacks standing to challenge it. Id. at 163-64.
Finally, Reynolds argues that he was actually innocent of violating SOR-NA's registration requirement, because SORNA required him to register only after he habitually resided in Pennsylvania for at least 30 days, and he was present in the Commonwealth for only 29 days before his arrest. Reynolds waived the right to advance that argument in his plea agreement, however, and we conclude that enforcement of that waiver would not coristi-tute a miscarriage of justice. United States v. Goodson, 544 F.3d 529, 533 (3d Cir.2008).
The judgment of conviction will be affirmed. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479816/ | *128OPINION OF THE COURT
JORDAN, Circuit Judge.
Bradley Highbarger appeals from a judgment entered by the District Court of the Virgin Islands convicting him of two counts of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(B). On appeal, Highbarger argues that the District Court erred by denying his motion to suppress evidence obtained from his computers and another digital storage device. Because we write only for the benefit of the parties, we assume familiarity with the facts of this criminal case and the proceedings in the District Court. For the following reasons, we will affirm the judgment of conviction.
I. Background
On July 20, 2006, federal agents searched Highbarger’s residence pursuant to two warrants.1 The agents seized several items, including a Compaq central processing unit tower, a generic central processing unit tower, and a Lexar USB storage device (collectively, “the computers and the digital storage device”). On August 25, 2006, federal agents applied for a separate warrant to search the seized computers and digital storage device for evidence of illegal drug dealing, specifically violations of 21 U.S.C. § 841.2 A magistrate judge approved the warrant the same day.
Pursuant to the August 25, 2006 warrant, Agent Hillary Hodge, the Resident Agent in Charge of the St. Thomas, Virgin Islands Division of the United States Department of Homeland Security, Immigration and Customs Enforcement, performed a search of the computers and the digital storage device. During the search, Agent Hodge, a certified digital forensic examiner, reviewed the graphic files on the computer, looking for images of drug-related activity. Upon reviewing one of the graphic files, Agent Hodge saw what appeared to be a picture of a young girl engaging in oral intercourse with an adult male. He then observed that there were several other graphic files that he had not viewed and terminated his search.
On October 3, 2006, Agent James Stone, a special agent for the United States Department of Homeland Security, Immigration and Customs Enforcement, applied for a warrant to search the hard drives of Highbarger’s computers for evidence of materials involving the sexual exploitation of children in violation of 18 U.S.C. § 2251(a), et seq. In support of the application, Agent Stone stated in an affidavit that the digital forensic examiner (i.e., Agent Hodge) had discovered “several dozen child pornography images” during the search performed pursuant to the August 25, 2006 warrant. (App. at 109.) He further stated that “the images were of young girls that appeared to be teenage or younger engaging in sexually explicit conduct.” Id. He included the statutory definition of sexually explicit conduct, but did not include a further description of the images the digital forensic examiner had seen or attach a copy of the images to his affidavit. A magistrate judge approved the warrant, and the computers and the digital storage device were searched. Although the number of images seized is not clear from the record before us, the government and Highbarger reached a conditional plea agreement acknowledging that the search of the computers and the digital storage device revealed approximately 78 video *129clips and more than 30 images of child pornography.
On February 15, 2007, a grand jury returned a five-count indictment charging Highbarger with two counts of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(B), two counts of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), and one count of attempting to transport child pornography in violation of 18 U.S.C. §§ 2252A(a)(l) and 2252A(b)(l). Highbarger moved to suppress any evidence obtained from his computers and digital storage devices, arguing that the seai'ch conducted by Agent Hodge exceeded the scope of the August 25, 2006 warrant, that the October 3, 2006 warrant was not supported by probable cause, that the October 3, 2006 warrant did not “save” evidence that was illegally obtained as a result of exceeding the scope of the August 25, 2006 warrant, and that the good faith exception to the exclusionary rule did not apply.
The District Court held an evidentiary hearing on the motion to suppress. At the hearing, both Agent Hodge and Agent Stone testified. Agent Hodge testified about the search he conducted pursuant to the August 25, 2006 warrant. He explained that he was searching the graphic files for evidence of drug-related activity using a program that allowed him to see approximately 26 thumbnail images of graphic files on his computer screen at one time. He further testified that he opened one of these graphic files and determined that it contained an image of a six or seven year-old female engaging in oral intercourse with an adult male. Agent Hodge testified that he then examined the other thumbnail images on the computer screen, and the similarity of those images to the image he had enlarged and viewed led him to suspect that the additional images also contained child pornography. After Agent Hodge’s testimony, Agent Stone also testified about his application for the October 3, 2006 warrant.
In a written order, the District Court denied Highbarger’s motion to suppress. The Court first concluded that Agent Hodge was performing a lawful search of Highbarger’s computer pursuant to the August 25, 2006 warrant when he discovered the first image of child pornography. The Court therefore declined to suppress that image. Next, the Court agreed with Highbarger that the October 3, 2006 warrant was not supported by probable cause and that the good faith exception did not apply. However, the Court held that the doctrine of inevitable discovery applied, reasoning that Agent Hodge could have lawfully continued his search for drug-related activity after he saw the first image of child pornography and would have inevitably discovered the additional images of child pornography during that search. Accordingly, the Court declined to suppress any of the evidence seized from the computers and the digital storage device.
After the District Court denied the motion to suppress, Highbarger pled guilty to two counts of 18 U.S.C. § 2252A(a)(2)(B) pursuant to a conditional plea agreement with the United States. The plea agreement preserved his right to appeal the District Court’s order denying his motion to suppress. The District Court sentenced Highbarger to a term of seventy-five months of imprisonment and a life term of supervised release. Highbarger filed a timely appeal.3
II. Discussion4
On appeal, Highbarger argues that the District Court erred by denying the *130motion to suppress, primarily contending that Agent Hodge’s search exceeded the scope of the August 25, 2006 warrant. The government responds that the District Court did not err by concluding that the doctrine of inevitable discovery is applicable. It further argues, in the alternative, that the October 3, 2006 warrant was supported by probable cause and that, in any case, the good faith exception to the exclusionary rule applies to the images seized pursuant to the October 3, 2006 warrant.
When reviewing a District Court’s order denying a motion to suppress, we review the Court’s factual findings for clear error and exercise plenary review over its application of law to those facts. See United States v. Bond, 581 F.3d 128, 133 (3d Cir.2009).
Preliminarily, it appears that Highbar-ger contests the District Court’s determination that Agent Hodge only reviewed one image that contained child pornography. As discussed above, the District Court found that Agent Hodge was searching the computer files for images of drug transactions when he saw the image containing child pornography. The Court also found that Agent Hodge “noted that the computer still contained several dozen un-reviewed images, and stopped his search.” (App. at 4.) This factual finding is supported by the record. On direct examination, Agent Hodge testified that he opened the first file containing child pornography but did not open any additional files. He did, however, state that he saw the thumbnails on his screen and, based on the similarity of the images, believed that they also contained child pornography. In his brief, Highbarger points to the cross-examination of Agent Hodge, in which the agent agreed that he told Agent Stone that several dozen images of child pornography were opened and viewed. Yet that answer, which appears to contradict his earlier testimony, seems to have resulted from confusion about the meaning of “viewed”— specifically, whether it referred to viewing the thumbnail images as they existed on the screen or enlarging and then viewing them. In any case, given the possibility of such confusion, the District Court did not clearly err in crediting the testimony that Agent Hodge gave during his direct examination.
Next, Highbarger argues that Agent Hodge exceeded the scope of the warrant by searching files with titles that indicated they did not contain evidence of drug-related activity. We believe that the District Court correctly decided that Agent Hodge was lawfully searching pursuant to the August 25, 2006 warrant when he discovered the first image of child pornography. As the District Court recognized, law enforcement officials who have obtained a warrant to search a computer are not required to limit their search in accordance with a suspect’s description of his files. See, e.g., United States v. Giberson, 527 F.3d 882, 889-90 (9th Cir.2008); United States v. Hill, 459 F.3d 966, 977-78 (9th Cir.2006). Suspects can easily hide information by mislabeling files, and, therefore, law enforcement officials are not required to accept a suspect’s designation of what is contained in a particular file. See Hill, 459 F.3d at 978 (“Forcing police to limit their searches to files that the suspect has labeled in a particular way would be much like saying police may not seize a plastic bag containing a powdery white substance if it is labeled ‘flour’ or ‘talcum powder.’” (quoting United States v. Hill, 322 F.Supp.2d 1081, 1090 (C.D.Cal.2004))).
Moreover, the warrant authorized Agent Hodge to search and seize “all documents, records and materials in whatever form” for evidence of violations of 21 U.S.C. § 841. (App. at 104.) During the eviden-tiary hearing, Agent Hodge testified that *131graphic images often contain evidence of drug-related activities and that he opened the graphic files in order to determine their contents. He was accordingly authorized by the warrant to open the graphic files on Highbarger’s computer when searching for evidence of drug-related activity. See Giberson, 527 F.3d at 889-90. Therefore, the District Court did not err in concluding that Agent Hodge did not exceed the scope of the August 25, 2006 warrant.
Once Agent Hodge had opened the graphic file that contained the image of child pornography, he was entitled to seize that image under the plain view doctrine. “Under that doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant.” Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (citations omitted). Accordingly, the District Court did not err in refusing to suppress that image of child pornography.
After Agent Hodge discovered that image, he stopped his search,5 and Agent Stone subsequently applied for the October 3, 2006 warrant to search for evidence of sexual exploitation of children in violation of 18 U.S.C. § 2251(a), et seq. The District Court held that the October 3, 2006 warrant was not supported by probable cause and that the good faith exception to the exclusionary rule did not apply. Because we conclude that the good faith exception does apply, we need not address the District Court’s analysis of the probable cause issue. See United States v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars and Fifty-Seven Cents, 307 F.3d 137, 145 (3d Cir.2002) (“[I]f a motion to suppress evidence obtained pursuant to a warrant does not present a Fourth Amendment argument that should be decided in order to provide instruction to law enforcement or to magistrate judges, it is appropriate for a reviewing court to turn ‘immediately to a consideration of the officers’ good faith.’ ” (quoting United States v. Leon, 468 U.S. 897, 925, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984))).
In United States v. Leon, the Supreme Court recognized a good faith exception to the exclusionary rule. The Court explained that the purpose of the exclusionary rule, i.e., the deterrence of Fourth Amendment violations, would not be served in a case where an officer “acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope” because “an officer cannot be expected to question the magistrate’s probable-cause determination....” 468 U.S. at 920-21, 104 S.Ct. 3405. In a recent decision, the Supreme Court further emphasized the limited scope of the exclusionary rule, explaining that it “serves to deter deliberate, reek-*132less, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” Herring v. United States, — U.S. -, 129 S.Ct. 695, 702, 172 L.Ed.2d 496 (2009). Thus, the Court held that it should only be applied when “police conduct [is] sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Id.
Nevertheless, the good faith exception does not apply where the affidavit is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Leon, 468 U.S. at 923, 104 S.Ct. 3405 (internal citations and quotations omitted); United States v. Stearn, 597 F.3d 540, 561 (3d Cir.2010). The District Court concluded that the good faith exclusion did not apply in this case because “[n]o objectively reasonable officer would rely on such scant support” as contained in the affidavit Agent Stone submitted when seeking the warrant. (App. at 13.) Although the District Court is correct that the affidavit was not as complete as it could and perhaps should have been, we disagree with its conclusion that the good faith exception does not apply.
In support of the application for the October 3, 2006 warrant, Agent Stone’s affidavit informed the magistrate judge that another law enforcement officer had discovered the images and concluded that they were images of child pornography. Agent Stone stated that the images were of “young girls that appeared to be teenage or younger engaging in sexually explicit conduct.” (App. at 109.) Importantly, this description was provided in the context of the affidavit quoting statutory language that defines sexually explicit conduct. The magistrate judge approved the warrant. Although it would have been better for Agent Stone to have provided a more detailed description of the content of a pornographic image, or an actual copy of one, we do not agree that Agent Stone’s belief in the validity of the warrant was objectively unreasonable. Given the Agent’s quoting of the relevant statutory language and the assertion that what was viewed was “sexually explicit conduct” as defined by the statute and was performed by someone of an age appearing young enough to be legally considered a child, it was not unreasonable for the Agent to believe that the affidavit was sufficient and to rely on the magistrate judge’s issuance of the warrant. See United States v. Grant, 490 F.3d 627, 633-34 (8th Cir.2007) (determining that the good faith exception applied where the affidavit stated that a computer repairman had viewed the images and concluded they were images of “child pornography,” even though the affidavit did not specifically describe the images). Accordingly, the good faith exception applies, and, though we have done so by a different route, we arrive at the same point the District Court did: the evidence obtained pursuant to the October 3, 2006 warrant should not be suppressed.6
III. Conclusion
We agree with the District Court, that Highbarger’s motion to suppress was ill-founded. We will therefore affirm the judgment of conviction.
. The searches of Highbarger's residence are not at issue in this appeal.
. Section 841(a)(1) makes it unlawful for "any person knowingly or intentionally ... to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.”
. Highbarger does not appeal the sentence imposed by the District Court.
. The District Court exercised jurisdiction under 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291.
. For this reason, Highbarger's reliance on United States v. Carey, 172 F.3d 1268 (10th Cir.1999), is misplaced. In Carey, the detective, like Agent Hodge here, inadvertently opened the first image of child pornography during a search of a computer for drug-related activity. Id. at 1271. But the factual similarities end there. Unlike Agent Hodge, who stopped searching at that point, the detective in Carey continued to search the images, even though he testified that, after seeing the first image, he had probable cause to believe that the additional images contained more child pornography. Id. The Tenth Circuit held that the detective exceeded the scope of the warrant and suppressed the seized evidence. Id. at 1276. The Court's holding, however, did not apply to the first image that was inadvertently seen and was "confined to the subsequent opening of numerous files the officer knew, or at least, expected, would contain images of child pornography.” Id. at 1273 n. 4.
. In light of our conclusion that the good faith exception applies to the evidence seized pursuant to the October 3, 2006 warrant, we need not decide whether the District Court erred by concluding that the doctrine of inevitable discovery applied to this case. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479817/ | OPINION
COAVEN, Circuit Judge.
Plaintiffs Democracy Rising PA (“Democracy Rising”) and Tim Potts appeal from the order of the United States District Court for the Middle District of Pennsylvania granting Defendants’ motion to dismiss. We will affirm.
I.
This appeal involves a First Amendment challenge to a Pennsylvania judicial canon governing the speech of candidates for judicial office in the Commonwealth of Pennsylvania. Pennsylvania selects judges through an election process. Candidates for judicial office are selected in the first instance in a primary election, which is then followed by a general partisan election. Once elected, serving judges stand for “retention,” wherein the voters simply decide whether to retain the judge or to remove him or her from office. The campaign conduct of judicial candidates is governed by the Pennsylvania Code of Judicial Conduct, which is a body of regulations promulgated by the Pennsylvania Supreme Court. In turn, the Pennsylvania Board of Judicial Conduct (“Judicial Conduct Board”) receives and investigates complaints regarding the campaign activities of sitting judges. If it decides that there is probable cause, the Judicial Conduct Board may file charges and prosecute the individual before the Pennsylvania Court of Judicial Discipline. In addition, lawyers running for judicial office are required to comply with the applicable Canons and are subject to regulation and possible prosecution by the Pennsylvania Office of Disciplinary Counsel (“ODC”) before the Disciplinary Board of the Supreme Court of Pennsylvania.
Democracy Rising is a non-partisan organization with a stated mission of enhancing the transparency of the Commonwealth’s elected government. Potts serves as the president of this organization. Between January and March of 2007, Plaintiffs designed and distributed a questionnaire to every candidate for judicial election and retention in the Commonwealth.
At this point in time, Canon 7B(l)(c) prohibited judicial candidates from, among other things, “makfing] statements that commit or appear to commit the candidates with respect to cases, controversies or issues that are likely to come before the court.” Pa.Code of Jud. Conduct Canon *1577B(l)(c) (2007). This part of the Canon has generally been referred to as the “Commits Clause.”
According to Plaintiffs, several candidates indicated a desire and willingness to answer the questionnaire but refused to do so. At least some of these candidates expressly relied on the Canon and its specific “Commits Clause” as justifications for their refusal.
Plaintiffs filed their initial complaint and a motion to enjoin on May 10, 2007, shortly before the primary election. They named as Defendants the individual members of the Judicial Conduct Board as well as Paul J. Killion, who serves as the Chief Disciplinary Counsel of the ODC. The District Court held a hearing on the preliminary injunction motion on May 14, 2007. On the same day, the United States District Court for the Eastern District of Pennsylvania entered an injunctive order in Pennsylvania Family Institute, Inc. v. Celluci, E.D. Pa. Civil Action No. 07-1707 (“PFI”). This order preliminarily enjoined the defendants in that case from, inter alia, enforcing the “Commits Clause” of Canon 7B(l)(c). See Pa. Family Inst., Inc. v. Celluci, 489 F.Supp.2d 447, 460 (E.D.Pa.2007) (“PFI I”). Because the preliminary injunction in the PFI litigation concerned the same provision challenged in this case, the District Court granted Defendants’ motion to stay the instant matter on July 12, 2007.
On October 16, 2007, the PFI court granted the defendants’ motion for summary judgment and vacated the preliminary injunction. See Pa. Family Inst., Inc. v. Celluci, 521 F.Supp.2d 351, 388 (E.D.Pa.2007) (“PFI II”). It found that Canon 7B(l)(c) was constitutional both facially and as applied, but it did so only after, among other things, accepting the defendants’ narrow construction of the “Commits Clause” and specifically deleting the unconstitutional “appear to commit” language from the Canon itself. Id. at 372-87. The PFI court further clarified the meaning and effect of its narrow construction by adopting in full the affidavit submitted by Joseph A. Massa, Jr., the Chief Counsel for the Judicial Conduct Board. Id. at 381-82.
It is uncontested that, on or about March 17, 2008, the Pennsylvania Supreme Court amended Canon 7B(l)(c) by deleting the “appear to commit” language. The revised Canon now prohibits candidates from making “statements that commit the candidate with respect to cases, controversies or issues that are likely to come before the court.” Pa.Code of Jud. Conduct Canon 7B(l)(c) (2009) (amended Mar. 17, 2008). It appears that the Judicial Conduct Board’s website continued to include the previous version of the Canon, at least until the December 2009 filing of Plaintiffs’ appellate brief brought this oversight to the Defendants’ attention. According to Defendants, Pennsylvania Rules of Court, including the Code of Judicial Conduct, are officially published in the Pennsylvania Bulletin, and the Pennsylvania Supreme Court order amending the Canon is available through the judicial website.
The District Court reopened this case on April 7, 2008. Plaintiffs then filed a second amended complaint, in which they argued, among other things, that: (1) the ruling in PFI II was wrong on its face and should not be followed by the District Court; (2) “the Supreme Court of Pennsylvania’s recent minor amendment” omitted an explanatory comment disclosing the binding representations made in the PFI litigation and otherwise failed to consider the additional unconstitutional components of the challenged Canon not addressed by the PFI court; and (3) the Pennsylvania Supreme Court “desires to maintain an ambiguous ethics rule to discourage judicial candidates from answering questions during political campaigns — a policy ad*158vanced by the recent minor amendment to the challenged canon without an accompanying explanatory comment to publicly disclose alleged binding representations.” (A44.) Defendants moved to dismiss.
The District Court granted the motion to dismiss in an order entered on March 20, 2009, 603 F.Supp.2d 780. It provided a thorough explanation for this result in an accompanying memorandum. In short, the District Court found that: (1) the prospective claims requesting injunctive and declaratory relief must be dismissed for want of Article III standing because Plaintiffs failed to satisfy the “willing speaker” rule with respect to the amended Canon; (2) this lack of standing required the District Court to dismiss the prospective claims and rendered any further discussion superfluous; and (3) even if Plaintiffs otherwise possessed the standing to seek prospective relief, such claims must still be dismissed on ripeness grounds due to the absence of any official interpretation indicating that the amended “Commits Clause” prohibits the speech sought by Plaintiffs’ questionnaire as well as Plaintiffs’ failure to establish the existence of a willing speaker with respect to this amended Canon.1
II
Setting aside the justiciability doctrines, it is undisputed that the District Court possessed subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 1331. We have appellate jurisdiction under 28 U.S.C. § 1291. The District Court found that Defendants made a “facial” attack on the jurisdictional sufficiency of Plaintiffs’ pleading pursuant to Federal Rule of Civil Procedure 12(b)(1). Under this framework, a district court must accept the allegations in the complaint as true and determine whether they are sufficient to invoke its jurisdiction. See, e.g., Common Cause of Pa. v. Pennsylvania, 558 F.3d 249, 257 (3d Cir.), cert. denied, — U.S. -, 130 S.Ct. 1015, 175 L.Ed.2d 618 (2009). We in turn exercise de novo review over a Rule 12(b)(1) dismissal. See, e.g., id.
III.
Ever since the United States Supreme Court’s 2002 ruling in Republican Party of Minnesota v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002), organizations like Democracy Rising and others have filed cases across the country challenging the constitutionality of state restrictions on the speech of judicial candidates. See, e.g., Pa. Family Inst., Inc. v. Black, 489 F.3d 156, 163 (3d Cir.2007) (per curiam). In addition to the underlying constitutional issues, such proceedings often raise serious justiciability problems. See, e.g., id. at 163-64. This current case is not an exception.
This Court has considered the relevant ease law, the District Court’s ruling, the record on appeal, and the numerous assertions of the parties themselves. In the end, we conclude that Plaintiffs’ claims for prospective relief2 were properly dismissed pursuant to the doctrines of mootness and ripeness.3 Therefore, like the District Court, we need not (and do not) consider the merits of Plaintiffs’ attack on the constitutionality of Canon 7B(l)(c) at this time.
*159The speech restrictions at issue here apply to the judicial candidates themselves and not to the Plaintiffs. Accordingly, the District Court appropriately turned to the “willing speaker” rule in its standing and ripeness analysis. It appears well established that, “where one enjoys the right to speak, others hold a ‘reciprocal right to receive’ that speech, which ‘may be asserted’ in court.” Black, 489 F.3d at 165 (quoting Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 757, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976)). In a recent case addressing a First Amendment challenge to Pennsylvania’s judicial canons and rules, we held that the plaintiff must satisfy a “but for” test in order to benefit from the “willing speaker” rule: “As noted, there may be other reasons present but, reading the Supreme Court’s cases together with our own, we hold that in order to show the existence of a willing speaker for the purposes of establishing third party standing, a party must at least demonstrate that but for a regulation, a speaker subject to it would be willing to speak.” Id. at 167.
Likewise, “ ‘[t]the central question of all mootness problems is whether changes in circumstances that prevailed at the beginning of the litigation have forestalled any occasion for meaningful relief.’ ” Am. Bird Conservancy v. Kempthorne, 559 F.3d 184, 188 (3d Cir.2009) (quoting In re Surrick, 338 F.3d 224, 230 (3d Cir.2003)). In particular, an amendment eliminating those aspects of a regulation challenged in the litigation actually moots the claims for relief in certain circumstances. See, e.g., Nextel W. Corp. v. Unity Twp., 282 F.3d 257, 261-62 (3d Cir.2002). On the other hand, the ripeness doctrine is designed to prevent a plaintiff from prematurely litigating a case. See, e.g., Khodara Envtl., Inc. v. Blakey, 376 F.3d 187, 196 (3d Cir.2004). The doctrine generally requires the court to consider such factors as whether the parties are in a sufficiently adversarial posture, whether the facts of the case are sufficiently developed to permit the court to resolve the matter in a conclusive fashion, and whether the plaintiff is sufficiently aggrieved so as to avoid the expenditure of scarce judicial resources on matters that have caused no real harm. See, e.g., id. The District Court in turn expressly recognized that First Amendment cases require some relaxation of the general ripeness standard.
Rejecting the contrary arguments raised by Plaintiffs on appeal, this Court finds that events that have occurred since this litigation was originally filed in the District Court have clearly mooted Plaintiffs’ claims for prospective relief. On October 16, 2007, the PFI court narrowly construed the “Commits Clause” contained in Canon 7B(l)(e), specifically eliminating the “appear to commit” language as unconstitutional. PFI II, 521 F.Supp.2d at 372-87. In turn, the Pennsylvania Supreme Court formally deleted this problematic language on or about March 17, 2008. Instead of treating these events as at least a substantial victory in their favor, Plaintiffs have, inter alia, vigorously attacked the PFI court’s reasoning, the amended Canon, and the actions (and even the motives) of Defendants and the Pennsylvania Supreme Court. While Plaintiffs especially take issue with the failure to incorporate the *160Massa affidavit into the amendment in some formal way (such as in an explanatory note), we note that, among other things, Defendants themselves indicate in their appellate brief that they remain bound by this affidavit. In any case, we must dismiss the claims as moot because of the clear absence of any judicial candidate who would have been willing to speak but for the amended Canon. At best, there were judicial candidates who indicated a willingness to speak but for the existence of an earlier and now defunct version of the Canon. In fact, several of these candidates expressly cited or otherwise referred to the since-deleted “appear to commit” language in justifying their refusal to answer Plaintiffs’ questionnaire.
This reasoning further supports the District Court’s alternative finding that the claims were not yet ripe. Citing to its earlier decision in Black, the District Court properly observed that Plaintiffs failed to present any evidence suggesting that a Pennsylvania court or agency has interpreted the current “Commits Clause” to prohibit the speech it sought in the questionnaire. It did recognize that this Court previously stated that, “had [the plaintiff! established the existence of a willing speaker, the underlying challenge to the Canons and Rules themselves as having a chilling effect on speech would have been ripe.” Black, 489 F.3d at 170. Nevertheless, it is clear that Plaintiffs here failed to establish the existence of a willing speaker with respect to the Amended Canon.
IV.
For the foregoing reasons, we will affirm the District Court’s order of dismissal.
.Although it also found that Plaintiffs' claims for compensatory relief were in fact justicia-ble, the District Court nevertheless dismissed these claims as barred by either the Eleventh Amendment or the doctrine of qualified immunity.
. Plaintiffs do not challenge on appeal the District Court's dismissal of their non-prospective claims on Eleventh Amendment and qualified immunity grounds.
. The District Court expressly found that the prospective claims must be dismissed on *159standing and ripeness grounds. However, it refrained from considering whether such claims were moot. Under the circumstances, this Court finds that the doctrines of mootness and ripeness provide the appropriate framework for resolving this appeal. See, e.g., Nicini v. Morra, 212 F.3d 798, 805 (3d Cir.2000) (“We may affirm the District Court on any grounds supported by the record." (citing Hedges v. Musco, 204 F.3d 109, 116 (3d Cir.2000))). Nevertheless, the District Court’s reasoning with respect to standing, especially its application of the “willing speaker” concept, has relevance in the mootness inquiry. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479819/ | OPINION
ALARCÓN, Circuit Judge.
Melissa Anspach and her parents (“the Anspachs”) sued the City of Philadelphia and certain employees of the City’s Department of Public Health (“Appellees”) for alleged violations of their First and Fourteenth Amendment rights to parental guidance, family privacy, and bodily integrity pursuant to 42 U.S.C. § 1983. The District Court concluded that the claims raised in the Anspachs’s amended complaint have already been litigated in both the district and circuit courts, and dismissed the Anspachs’s federal claims as barred under the doctrine of collateral es-toppel.1 The Anspachs have appealed that ruling as erroneous. We affirm.2
*182I
A
The underlying facts and procedural history are set forth in detail in Anspach I, 2005 WL 1519014 at *1-2, 2005 U.S. Dist. LEXIS 12546 at *2-5, Anspach II, 503 F.3d at 259-60, and in the order on appeal, Anspach v. City of Philadelphia, 630 F.Supp.2d 488, 489-90 (E.D.Pa.2008) (“An-spach III ”). The facts are known to the parties; accordingly, we limit our summary of them to those pertinent to the issues presented in this appeal. On January 26, 2004, sixteen-year-old Melissa An-spach visited the City of Philadelphia’s Public Health Center (“the Center”) and requested emergency “morning after” contraceptive pills. After talking to a social worker and signing a consent form, Melissa swallowed four contraceptive pills that were provided to her by Appellee Mary Gilmore, a registered nurse. Nurse Gilmore instructed Melissa to take another four pills twelve hours later. When Melissa asked Nurse Gilmore about availability of medication to alleviate the side-effects of the contraceptive pills, she indicated that there was no such medication available.
Upon taking the second dose of pills early the next morning, Melissa experienced severe stomach pain and began vomiting. After learning that Melissa had taken emergency contraception pills, her parents took her to a hospital emergency room. Melissa was released from the hospital the same day. She later returned to the hospital for treatment because of sub-conjunctive hemorrhaging in her eye that was apparently caused by excessive vomiting.
B
The Anspachs filed an action against the Appellees in state court pursuant to 42 U.S.C. § 1983 on February 10, 2005, in which they alleged Pennsylvania constitutional claims, state law test claims, and a cause of action for violation of the right to due process under the Fourteenth Amendment. Melissa’s parents alleged that their “constitutional rights to familial privacy, and to direct the reaiing and education of their minor children,” were violated by the Appellees. The complaint also alleged that the Appellees violated “Melissa’s constitutional right to receive her parents’ guidance and advice in matters relating to Melissa’s upbringing, privacy, religious beliefs and medical care.”
The Appellees removed this matter to federal court and filed a motion to dismiss the complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). The District Court dismissed the Anspachs’s § 1983 claims for lack of subject matter jurisdiction on the ground that “Plaintiffs [] failed to state a claim under federal law,” Anspach I, 2005 WL 1519014 at *1, 2005 U.S. Dist. LEXIS 12546 at *2, and remanded the Anspachs’s state law claims to the Philadelphia County Court of Common Pleas. That Court affirmed the District Court’s order. Anspach II, 503 F.3d at 274.
In conducting discovery in support of their remaining state claims, the Anspachs learned that Nurse Gilmore had misrepresented to Melissa that medication to alleviate the side-effects of contraception pills was unavailable, even though Nurse Gilmore knew of at least two medications that were used for these purposes. Based on this newly discovered evidence, the An-spachs filed an amended complaint in state court on May 5, 2008. They alleged that the Appellees violated Kurt and Karen Anspach’s “constitutional rights to familial privacy, and to direct the rearing, education and medical care of their minor children,” as well as “Melissa’s constitutional right to privacy, including her right to bodily integrity, her right to receive her *183parents’ guidance and advice in matters relating to Melissa’s upbringing, privacy, religious beliefs and medical care.” In addition, the Anspachs alleged in their amended complaint, that in distributing the “morning after pills” to Melissa, the Appellees also violated Title X of the Public Health Service Act, 42 U.S.C. §§ 300-300a-8.
The Appellees again removed the action to federal court. The Appellees filed a motion to dismiss the federal claims pursuant to Rule 12(b)(6). They asserted that the federal constitutional claims were barred by the doctrine of collateral estop-pel. The District Court concluded that the Anspachs’s substantive due process claims were barred by the doctrine of collateral estoppel. It also held that the Anspachs failed to state a claim under Title X. The District Court declined to exercise supplemental jurisdiction over the state law claims. The Anspachs appeal from the District Court’s rulings as to their parental guidance and bodily integrity claims, but do not challenge the dismissal of their Title X claims.
II
The Anspachs argue on appeal that the District Court erred in dismissing their federal due process claims as barred by the doctrine of collateral estoppel. They contend that Nurse Gilmore’s false statement to Melissa about the unavailability of anti-nausea medication creates a “new and qualitatively different factual setting” demonstrating “coercion, manipulation, or restraining conduct by the State” which supports their § 1983 claim. (Appellants’ Br. 37-38.) We review the district court’s application of the doctrine of collateral estop-pel for abuse of discretion. McLendon v. Cont’l Can Co., 908 F.2d 1171, 1177 (3d Cir.1990) (citing Parklane Hosiery, Inc. v. Shore, 439 U.S. 322, 331, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979)).
A
The doctrine of collateral estoppel requires a reviewing court to determine whether “(1) the identical issue was previously adjudicated; (2) the issue was actually litigated; (3) the previous determination was necessary to the decision; and (4) the party being precluded from relitigating the issue was fully represented in the prior action.” Raytech Corp. v. White, 54 F.3d 187, 190 (3d Cir.1995). “When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.” Jean Alexander Cosmetics, Inc. v. L’Oreal USA, Inc., 458 F.3d 244, 249 (3d Cir.2006) (quoting Restatement (Second) of Judgments § 27 (1982)).
In determining that the Anspachs were collaterally estopped from re-litigating the federal claims alleged in their amended complaint, the District Court concluded that, with the exception of the Title X claim, there were no differences in the allegations previously litigated by the An-spachs — against these same Appellees— and those in the amended complaint. Anspach III, 630 F.Supp.2d at 493. The District Court reasoned as follows:
the plaintiffs themselves do not dispute that they are re-asserting Melissa’s bodily integrity or her and her parents’ Fourteenth Amendment claims. Rather, they • allege only that their reassertion of these claims “is based on evidence that was unavailable and/or unknown to plaintiffs when plaintiffs drafted and filed their initial complaint.” Even if we were to assume for the sake of argument that such newly discovered evidence is a valid ground upon which to consider anew a previously adjudicated claim, at *184no time have the plaintiffs even revealed what this new evidence is.
Anspach III, 630 F.Supp.2d at 493 n. 5 (citation omitted).
The District Court determined that “the four elements required to invoke collateral estoppel [were] present,” Anspach III, 630 F.Supp.2d at 491, as to all of the issues that are raised in this appeal. We agree.
The Anspachs have conceded that they are “reasserting] Melissa Anspach’s bodily integrity claim and Mr. and Mrs. An-spach’s parental rights claims” that were previously litigated. (Appellants’ Br. 29.) The Anspachs also do not dispute that the previous determination was necessary to the decision, or that they were represented in the prior action. Their only argument in this appeal is that collateral estoppel does not apply to the allegation in their amended complaint because “the issues decided previously are' not identical with the issue raised by [their] amended complaint.” (Appellants’ Br. 33.)
Issues litigated in a prior action have preclusive effect if the controlling facts essential to the judgment remain unchanged in the later action. Montana v. United States, 440 U.S. 147, 159, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979); see also Comm’r of Internal Revenue Serv. v. Sunnen, 333 U.S. 591, 599-600, 68 S.Ct. 715, 92 L.Ed. 898 (1948) (collateral estoppel applies where “the matter raised in the second suit is identical in all respects with that decided in the first proceeding and where the controlling facts and applicable legal rules remain unchanged”). “To produce absolution from collateral estoppel on the ground of changed factual circumstances, the changes must be of a character and degree as might place before the court an issue different in some respect from the one decided in the initial ease.” EEOC v. American Airlines, 48 F.3d 164, 168 (5th Cir.1995).
The Anspachs argue that the issue presented in this matter is similar to the question addressed in Hawksbill Sea Turtle v. Fed. Emer. Mgmt. Agency, 126 F.3d 461 (3d Cir.1997). In Hawksbill Sea Turtle, this Court held that “when significant new facts grow out of a continuing course of conduct, the issues in a successive suit may fail to constitute the same ‘issue’ as to merit preclusive effect.” Id. at 477.3 The Anspachs maintain that the newly discovered evidence of Nurse Gilmore’s false *185statement to Melissa about the unavailability of anti-nausea medication creates a “new and qualitatively different factual setting,” similar to that found in Hawks-bin, because it demonstrates “manipulative and coercive conduct that this Court did not find in the initial complaint.”4 (Appellants Br. 37, 40.)
The Anspachs have not shown how Nurse Gilmore’s false statement significantly changes the controlling facts, or otherwise establishes coercion, manipulation, or restraining conduct by the State sufficient to bar the application of collateral estoppel. While the evidence of Nurse Gilmore’s false statement may be new, it is not “qualitatively different” from the factual allegations that were before the District Court and this Court in the prior litigation. In Anspach II, this Court held that the Anspachs failed to demonstrate a due process violation because “the conduct complained of was devoid of any form of constraint or compulsion.” 503 F.3d at 264. Nurse Gilmore’s false statement about the unavailability of pain pills is not significant enough to alter the controlling facts of this case. Accordingly, we conclude that the District Court did not abuse its discretion in concluding that federal constitutional claims raised in the Anspachs’s amended complaint are barred by the doctrine of collateral estoppel.
The District Court’s judgment is AFFIRMED.
. The Anspachs originally filed suit against these same defendants in a state court action filed in February 2005, alleging federal constitutional claims pursuant to 42 U.S.C. § 1983. Defendants removed the matter to federal court and moved to dismiss the claims pursuant to Fed.R.Civ.P. 12(b)(6). The District Court granted the motion, dismissing the Anspachs’s § 1983 claims for lack of subject matter jurisdiction on the ground that "Plaintiffs [] failed to state a claim under federal law.” Anspach v. City of Philadelphia, 2005 WL 1519014, at *1, 2005 U.S. Dist. LEXIS 12546, *2 (E.D. Pa. June 27, 2005) ("Anspach I”) aff'd Anspach v. City of Philadelphia, 503 F.3d 256 (3d Cir.2007) (“Anspach II") (affirming the District Court's ruling in a forty-seven-page published opinion).
. The District Court had jurisdiction over the Anspachs's 42 U.S.C. § 1983 claims pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over the Anspachs's state law claims under 28 U.S.C. § 1367. We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of a district court’s dismissal of a complaint under Rule 12(b)(6) is plenary. Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir.2007).
. The plaintiffs in Hawksbill filed two actions seeking to enjoin construction projects that threatened endangered sea turtles and snakes following a hurricane that had struck the island of St. Thomas in 1995. Id. at 463. In the first suit, Judge Finch denied the relief requested in part because he concluded that no Tree Boas existed on the project site. Id. at 465. Six months later, in the second action before Judge Brotman, plaintiffs presented “new and qualitatively different evidence” than that which was before Judge Finch. Id. Specifically, plaintiffs presented evidence of live, injured, and dead Tree Boas near the project site. Id. Judge Brotman gave preclu-sive effect to Judge Finch's prior order and held that plaintiffs were collaterally estopped from re-litigating their claim for federal protection of the endangered species. Id. at 464. The plaintiffs appealed. Id.
This Court reversed, holding that Judge Brotman erred in giving preclusive effect to Judge Finch's findings because “[u]nder these circumstances, it was incumbent upon Judge Brotman to ground his findings on the new evidence.” Id. at 465. This Court explained that "[c]ollateral estoppel applies ... when the same issues decided in the past action arise again in the present context, [but] when significant new facts grow out of a continuing course of conducl[,] the issues in a successive suit may fail to constitute the same 'issue' so as to merit preclusive effect.” Id. at 477 (citations omitted) (emphasis added).
This Court also held in Hawksbill that the first preliminary injunction hearing had no preclusive effect on the second one because evidence had recently come to the light that the construction project would last much longer than anticipated during the first hearing. Id. at 465.
. The Anspachs argue that Nurse Gilmore's false statement shows that she was motivated by a desire either to "keep Mr. & Mrs. An-spach in the dark about their daughter's health,” or, "to insure that Melissa swallowed the second batch of pills ... irrespective of the risk associated with this medication.” (Appellants' Br. 49; Appellants' Reply Br. 7.) The Anspachs offer no evidence in support of the motives they ascribe to Nurse Gilmore, and admit that they did not “spell out the two likely explanations for [Nurse] Gilmore's deception in their complaint.” (Appellants' Reply Br. at 9.) | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479822/ | OPINION OF THE COURT
FUENTES, Circuit Judge:
Steven Fausnaught was convicted by a jury on all twelve counts in a third superseding indictment. The charges against him included conspiracy to distribute and possess with intent to manufacture and distribute methamphetamine and marijuana, in violation of 21 U.S.C. § 846. Fausnaught raises two issues on appeal. First, he argues that his conspiracy conviction should be vacated because there was a variance between the indictment and the proof presented at trial as to the existence of a single conspiracy and this variance prejudiced a substantial right. Second, he contends that the District Court erred at sentencing both by attributing to him a quantity of methamphetamine distributed by a co-defendant and by enhancing his sentence for possession of a firearm in connection with the offense. We find that no variance existed and that the District Court did not err at sentencing. Accordingly, we uphold Fausnaught’s conviction and affirm his sentence.
I.
Because we write primarily for the parties, we only discuss the facts and proceedings to the extent necessary for resolution of this case. Testimony presented to the jury at trial revealed that sometime in the early 1990s, Fausnaught began supplying marijuana on a consignment basis to Charles Sechler, Shane Mowrer, Timothy Moore, Robert Levan, and others. Faus-naught took over the role of his brother Michael, who had supplied marijuana up until his death from a drug overdose. Fausnaught “fronted” the product to these individuals: he would give drugs to them and they would in turn sell the drugs and
*200repay him from the proceeds. In December 1995, Fausnaught’s residence was raided by police.' During the raid, the police found marijuana, firearms, scales, packing material and money. They arrested Faus-naught. While in police custody, Faus-naught telephoned Moore and instructed him to contact the people that were fronted marijuana and owed him money in order to collect payment. Moore contacted Sechler, Levan and others and collected approximately $12,000, which was used as bail money for Fausnaught. The drug evidence obtained in the raid was ultimately suppressed and Fausnaught was not convicted of any related charges.
For a period following the raid, Faus-naught ceased supplying marijuana. In Fausnaught’s absence, Sechler began supplying Moore and others with marijuana that Levan transported from California. Fausnaught eventually resumed selling marijuana to Moore and John Rundle. Fausnaught, Sechler, and others also traveled together to Amsterdam to attend the Cannabis Cup, an international marijuana growing competition, to procure high-quality marijuana seeds for a grow operation in Sechler’s farmhouse.
In approximately 2000, both Fausnaught and Sechler began selling methamphetamine. Fausnaught sold methamphetamine to Rundle and Sechler sold methamphetamine to Moore. Moore testified that he would pick up methamphetamine from Sechler at the same time that Moore was picking up marijuana. This methamphetamine was stored in Sechler’s farmhouse, where marijuana was stored and grown. It also came from the same source, in California, from which Sechler obtained marijuana. Rundle testified that he obtained methamphetamine from Faus-naught starting sometime in 2000 and ending in October 2002, when Rundle’s residence was searched by police. Rundle had been buying marijuana from Faus-naught since approximately 1997 and continued to do so while purchasing methamphetamine.
During the months leading up to a January 2003 raid on their respective residences, Fausnaught and Sechler maintained regular contact. Indeed, pen register records show that between February and July 2002, the pair were in telephone contact with one another eighty-seven times. Additionally, between October 2002 and the date of the raid, Fausnaught and Sechler made telephone contact eighty-nine times. Furthermore, on October 7, 2002, police officers conducting surveillance saw Fausnaught at Sechler’s farmhouse, where a witness had testified marijuana and methamphetamine were stored. The two were seen loading something into Fausnaught’s vehicle.
On January 11, 2003, the police executed warrants on Fausnaught’s residence and Sechler’s residence and farmhouse. At Fausnaught’s residence, the police found guns, money, marijuana, a scale and packing material. The police raid on Sechler’s farmhouse yielded money, drug paraphernalia, and a number of objects — literature about cultivating marijuana, a shopping list, and empty seed bags from Amsterdam — suggesting a grow operation.
An initial indictment against Faus-naught, Rundle, David Benjamin and Moore was returned on February 11, 2003. It charged conspiracy to distribute methamphetamine and marijuana, as well as related crimes. Subsequent superseding indictments added other Defendants and removed Rundle and Moore. The third superseding indictment, which the grand jury returned on August 12, 2003, contained twelve counts against Fausnaught and Sechler. Fausnaught was charged with conspiracy to distribute and possess with intent to distribute in excess of 500 *201grams of methamphetamine and in excess of 100 kilograms of marijuana, in violation of 21 U.S.C. § 846, as well as related offenses.
On July 30, 2007, following a six-day trial, Fausnaught and Sechler were convicted on all charges levied against them in the third superseding indictment. Fausnaught was found to have an offense level of 40 under the sentencing guidelines because his offense involved at least 15 kilograms of methamphetamine and 100 kilograms of marijuana and dangerous weapons were possessed in connection with the offense. As a result, Fausnaught’s advisory sentencing guidelines range was 292 months to 365 months in prison. Faus-naught was subsequently sentenced on December 29, 2008 to 292 months in prison, followed by five years of supervised release, and was ordered to pay a special assessment of $900.
Thereafter, Fausnaught filed this appeal.
II.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have appellate jurisdiction under 28 U.S.C. § 1291.
A. Variance between the indictment and the evidence at trial
We must vacate a conviction “when (1) there is a variance between the indictment and the proof presented at trial and (2) the variance prejudices a substantial right of the defendant.” United States v. Kelly, 892 F.2d 255, 258 (3d Cir.1989); see also United States v. Kemp, 500 F.3d 257, 287 (3d Cir.2007). Fausnaught argues that a variance exists in his case, because, while the indictment charged a single conspiracy, at trial the Government proved multiple conspiracies. Fausnaught contends that, as a result of this alleged variance, the jury heard extensive evidence about drug sales and weapons possession that would have been otherwise inadmissible, and that this consequently prejudiced him.
To distinguish between single and multiple conspiracies, we generally consider three factors: (1) whether the conspirators shared a common goal; (2) whether the agreement “contemplated bringing to pass a continuous result that will not continue without the continuous cooperation of the conspirators;” and (3) “the extent to which the participants overlap in the various dealings.” Kelly, 892 F.2d at 259 (internal citations and quotations omitted). The absence of one of these factors, however, “does not necessarily defeat an inference of the existence of a single conspiracy.” United States v. Padilla, 982 F.2d 110, 115 (3d Cir.1992). Whether a single conspiracy or multiple conspiracies exist is a fact question that is entrusted to the jury and which we will sustain if there is substantial evidence to support the jury’s determination. United States v. Perez, 280 F.3d 318, 345 (3d Cir.2002). We review the record in the light most favorable to the government. Kemp, 500 F.3d at 287.
The first factor we consider is whether there was a common goal among the conspirators. In assessing whether the defendants shared a common goal, we look to the underlying purpose of the alleged criminal activity. See, Kelly, 892 F.2d at 259. In Kelly, the “common goal of all the participants was simply to make money selling ‘speed.’ ” Id. Similarly, the common goal among Fausnaught, Sechler, and their coconspirators was to make money from selling drugs. This was a goal that Fausnaught, Sechler, and others pursued through coordinated efforts from prior to 1995 through 2003.
Next, we consider whether the conspirators’ agreement sought to accomplish a continuous result that would not persist without the continuous cooperation of the *202conspirators. We have considered this element satisfied where the “evidence supports a finding that the activities of others were necessary or advantageous to the success of another aspect of the scheme or to the overall success of the venture.” United States v. Salmon, 944 F.2d 1106, 1117 (3d Cir.1991) (citation and internal quotations omitted). Fausnaught argues that there were no continuous results intended, nor was there continuous cooperation, as he dropped out of the picture for a brief period of time following the 1995 raid on his home. Testimony revealed, however, that the conspiracy persisted and that Fausnaught shortly returned to it. Moreover, there is no indication that he attempted to withdraw from the conspiracy. See United States v. Kushner, 305 F.3d 194, 198 (3d Cir.2002) (noting that withdrawal from a conspiracy requires more than the cessation of criminal activity and typically demands either confession to the proper authorities or communication to one’s co-conspirators that an individual has abandoned the enterprise and its objectives). The record at trial included substantial evidence of activities by members of the conspiracy that were necessary to further its overall purpose of making money through the sale of drugs. This included, inter alia, the transportation of drugs; the supply, distribution and sale of the drugs; storage of the drugs at the residences of members of the conspiracy; and travel to Amsterdam to obtain materials for the growing of marijuana.
Finally, we consider the extent to which participants overlap in the various dealings. “ ‘[T]he government need not prove that each defendant knew all the details, goals, or other participants’ in order to find a single conspiracy,” Kelly, 892 F.2d at 260 (citation and internal quotations omitted). Here, there is significant overlap between the participants, as Faus-naught concedes in his brief. We note just a few points of overlap. Moore purchased marijuana from both Sechler and Faus-naught at different points in time. He continued to purchase marijuana from Fausnaught at the same time that he was purchasing methamphetamine from Sech-ler. Levan both purchased marijuana distributed by Fausnaught and transported maxijuana for Sechler. Fausnaught and Sechler traveled to Amsterdam together to obtain marijuana seeds. At Fausnaught’s request, Moore contacted other members of the conspiracy to obtain money they owed to Fausnaught in order to help him in making bail. This and other evidence presented at trial reveal sufficient overlap to prove a single conspiracy.
Our analysis is not affected by the fact that the evidence only established that Sechler supplied methamphetamine to Moore and Fausnaught supplied it to Run-dle. “[A] finding of a master conspiracy with sub-schemes does not constitute a finding of multiple, unrelated conspiracies and, therefore, would not create an impermissible variance.” United States v. Smith, 789 F.2d 196, 200 (3d Cir.1986). Given the network of overlapping interactions among the Defendants, with the shared goal of making money from the sale of drugs, the jury did not err in finding a single conspiracy involving both marijuana and methamphetamine. Having found that no variance existed, we need not address Fausnaught’s arguments regarding prejudice.
B. Sentencing issues
Fausnaught argues that the District Court erred at sentencing when it attributed to him a quantity of methamphetamine distributed by Sechler. We review for clear error the District Court’s findings of fact regarding the relevant quantity of drugs attributable at sentencing. United States v. Gibbs, 190 F.3d 188, 197 (3d Cir.1999); see also United States *203v. Grier, 475 F.3d 556, 570 (3d Cir.2007) (“[T]his Court will continue to review factual findings relevant to the Guidelines for clear error and to exercise plenary review over a district court’s interpretation of the Guidelines.”) Under Section lB1.3(a)(l)(B) of the Sentencing Guidelines, a defendant’s base offense level is determined by considering, among other factors,
in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.
We have held that “whether an individual defendant may be held accountable for amounts of drugs involved in reasonably foreseeable transactions conducted by co-conspirators depends upon the degree of the defendant’s involvement in the conspiracy.” United States v. Collado, 975 F.2d 985, 995 (3d Cir.1992). We assess involvement by considering whether the co-conspirator’s drug transactions were: (1) “in furtherance of the ... jointly-undertaken activity;” (2) “within the scope of the defendant’s agreement;” and (3) “reasonably foreseeable in connection with the criminal activity the defendant agreed to undertake.” See id. (quoting U.S.S.G. § 1B1.3).
Fausnaught argues that Sechler’s methamphetamine transactions should not be attributed to him because, while the two had prior dealings involving marijuana, there was “no proof that the two shared suppliers or customers” for methamphetamine. (Appellant’s Br. at 22.) The jury convicted Fausnaught and Sechler of participating in a conspiracy to distribute both marijuana and methamphetamine. Faus-naught and Sechler played central roles within this conspiracy. The evidence showed that Fausnaught and Sechler frequently spoke to each other by telephone and met in person during the period in which they were distributing methamphetamine. Police officers observed Faus-naught with Sechler moving a package from Sechler’s farmhouse, in which a witness testified that methamphetamine was stored, into Fausnaught’s car. Given this and other evidence in the record, we find no basis to conclude that the District Court erred when it determined that the methamphetamine distributed by Sechler was within the scope of and in furtherance of the conspiracy proven at trial and that this transaction was reasonably foreseeable to Fausnaught.
Fausnaught also argues that the District Court erred by enhancing his offense level by two levels for possession of a dangerous weapon in connection with the offense. Fausnaught did not raise this objection at sentencing. The commentary to U.S.S.G. § 2Dl.l(b)(l) states that this enhancement should be applied when a weapon is present unless it is “clearly improbable that the weapon was connected with the offense.” United States v. Drozdowski, 313 F.3d 819, 820 (3d Cir.2002). A rifle and shotgun were found in Fausnaught’s residence during the search on January 11, 2003, a search that also yielded marijuana, methamphetamine, a scale, cash, an owe sheet, and drug paraphernalia. Guns had also been found, with drugs and related materials, during the December 1995 search of Fausnaught’s residence. The inventory receipt from that search was admitted into evidence at the trial, as well as two of the guns seized. Additional firearms, and drugs, were found in the search of the residence of John Rundle, one of Fausnaught’s coconspirators. Given these facts, we find that it was not clearly improbable that the guns found in Fausnaught’s residence were connected to the drug conspiracy.
*204For the foregoing reasons, we affirm Fausnaught’s conviction for conspiracy as well as his sentence. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479823/ | OPINION
PER CURIAM.
Petitioner Olsi Shkembi is a native and citizen of Albania who petitions for review of the Board of Immigration Appeals’s (“BIA”) final order of removal. For the following reasons, we will deny the petition for review.
I.
Shkembi entered the United States in 2003. He later filed an application for asylum, withholding of removal and relief under the United Nations Convention Against Torture (“CAT”), predicated on his claim that he had been persecuted for his involvement in the Albanian Democratic Party (“the Party”).
Shkembi joined the Youth Forum of the Party in 1996 and became a full member in 1998. As a member of the Youth Forum, Shkembi distributed literature and recruited students to join the Party. In February 1998, police removed him and several other students from their classroom. Shkembi was detained at the police station for several hours, during which the police interrogated, hit, and shoved him, resulting in bruising on his neck. Shkembi was released after Party members inquired about the detention.
Shkembi’s next confrontation with the police occurred a couple years later while he served as an election monitor.1 The police took Shkembi and his uncle (who was a Party leader in their village and chair of the region’s election committee) to the police station and detained them for two days. Shkembi was interrogated, threatened, and beaten, resulting in an injury to his shoulder which he treated with over-the-counter pain medication.
In 2002 and 2003 Shkembi worked on a camera crew for the Party’s media outreach program to help prepare for the 2003 local election. In June 2003, his uncle’s shop was bulldozed by the tax police due to pressure from the Socialist Party. Despite threats from the police, Shkembi filmed the bulldozing of the shop, which he asserted was broadcast on television.2
Before and after the 2003 election, Shkembi continued to be pressured and harassed by members of the Socialist Party, and he left Albania for the United States. Shkembi’s uncle also left Albania and relocated to Greece. He has a brother who is a Legal Permanent Resident of the United States, and another relative (described alternately as an uncle, grand-uncle, and great-uncle) who has been in the United States since 1968 and is a United States citizen.3 Shkembi’s two sisters re*209main in Albania, and his older sister’s affiliation with the Party has kept her from obtaining a scholarship and attending college.4
Shkembi fears returning to Albania because he believes that those who oppose the Party will kill him. Although the Party is now in control of the Albanian parliament, Shkembi asserted that the Socialist Party continues to exert regional influence and control.
Despite some inconsistencies between Shkembi’s testimony and his asylum application, the IJ determined that he was credible. She nevertheless denied Shkem-bi’s requests for relief because the incidents that he described did not rise to the level of persecution. The IJ also concluded that Shkembi’s fear of future persecution was unreasonable because, as described by the 2007 United States Department of State Country Condition Report, conditions in Albania have changed significantly. The Party is now in control, and the Country Report states that political parties are operating without restriction and that there have been no reports of the detention of political prisoners or political disappearances. Further, the 2007 election was held by the international community to be fair and organized. The IJ also stated that to the extent that Shkembi may be faced with regional harassment, there is nothing precluding him from moving to another area of Albania.5
The BIA affirmed, agreeing that Shkem-bi’s “evidence regarding the arrests, threats, and minor physical abuse did not rise to the level of persecution.” The BIA also noted that the Country Report “describes significant political change in Albania,” and that the continued presence of Shkembi’s family members in Albania demonstrates that his “subjective fear of returning to Albania is not objectively reasonable.”
Through counsel, Shkembi now petitions for review of the BIA’s final order of removal.
II
We have jurisdiction to review the BIA’s final order of removal under 8 U.S.C. § 1252(a). The BIA’s decision is reviewed under the substantial evidence standard and will be upheld “unless the evidence not only supports a contrary conclusion, but compels it.” Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir.2003) (internal citation omitted).
Shkembi asserts that his due process rights were violated because: (1) the IJ did not allow his brother to testify at his removal proceeding, and (2) the record of the proceeding was deficient. Shkembi did not, however, raise these arguments before the BIA. Due process claims involving constitutional issues are generally not subject to the exhaustion requirement, 8 U.S.C. § 1252(d)(1), because the BIA does not have authority to adjudicate such is*210sues, Marrero v. I.N.S., 990 F.2d 772, 778 (3d Cir.1993). Nevertheless, not all claims brought under the guise of due process fall outside the BIA’s jurisdiction. See id.; Bonhometre v. Gonzales, 414 F.3d 442, 448 (3d Cir.2005). As the Government argues, Shkembi’s due process claims are, in actuality, claims of procedural error that could have been raised before and adjudicated by the BIA. See Bonhometre, 414 F.3d at 448. Accordingly, the claims are unex-hausted and this Court does not have the authority to consider them. See Wu v. Att’y Gen., 571 F.3d 314, 317 (3d Cir.2009).
Substantial evidence also supports the BIA’s decision that Shkembi failed to sustain the burden of proof required for asylum eligibility. The police harassment, detentions, and accompanying mistreatment and threats suffered by Shkembi — which occurred over the course of several years — do not rise to the level of persecution. See Fatin v. I.N.S., 12 F.3d 1233, 1240 (3d Cir.1993) (defining persecution as “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom”); cf. Toure v. Attorney Gen., 443 F.3d 310, 317-19 (3d Cir.2006); Voci v. Gonzales, 409 F.3d 607, 615-16 (3d Cir.2005).6 Further, as the BIA properly concluded, even if Shkembi had established past persecution, the record is sufficient to rebut the presumption that his life or freedom would be threatened in the future. See 8 C.F.R. § 208.13(b)(1). The 2007 Country Report indicates that the Party is now the majority party, that there have been no recent outbreaks of political violence, and that political parties are unrestricted. Despite Shkembi’s argument to the contrary, this constitutes substantial evidence that supports the BIA’s determination that Shkembi did not show that it was more likely than not that he would be persecuted upon returning to Albania. See Cuko v. Mukasey, 522 F.3d 32, 40 (1st Cir.2008) (holding that reliance on country reports was sufficient to rebut the presumption of well-founded fear of future persecution based on support for Democratic Party of Albania).
Finally, because the threshold for asylum is lower than those for withholding of removal, Shkembi cannot successfully challenge the dismissal of that claim. See Yu v. Attorney Gen., 513 F.3d 346, 349 (3d Cir.2008). To the extent that Shkembi challenges the denial of his application for CAT relief, he fails to allege any incidents or likelihood of torture as is required for protection under the CAT. See 8 C.F.R. 208.16(c)(2).
For the foregoing reasons, we deny Shkembi’s petition for review.
. Shkembi testified that this event occurred in June 2000. His brief and the statement attached to his asylum application refer to a similar incident that occurred in June 2001. It is unclear whether these are two separate events or whether Shkembi misstated the date in his testimony.
. Shkembi submitted the DVD of the shop's destruction to the IJ.
. Shkembi's great-uncle testified at the 2007 merits hearing. He visited Albania in 2002 and testified to an incident where Shkembi was driving him around and they were stopped by police and questioned. He stated that the Police made reference to Shkembi's Party membership. He also asserted that he did not believe that Shkembi would be safe in Albania. Shkembi’s brother, who came to the United States in 1990, was available to testily as to Shkembi's identity, but he did not do so because the IJ determined that identity was not an issue in this case.
. Shkembi appeared to testify that his parents are United States citizens, but his asylum application and his brief to this Court state that they remain in Albania. The BIA also noted that Shkembi's parents and sisters still reside in Albania.
. Shkembi’s first merits hearing occurred in April 2007. Upon appeal, the BIA remanded the case to the IJ due to defective and missing tapes of the hearing and the IJ's oral decision. The BIA instructed the IJ to take the necessary steps to complete the transcript, including conducting a new hearing, if necessary. On May 7, 2008, the IJ conducted a second hearing at which Shkembi testified. The IJ also incorporated the available transcripts from the first hearing into the record. Shkembi's great-uncle was available to testify, but Shkembi’s attorney and the government stipulated that he would testify in accordance with his previous testimony and that it was unnecessary for him to testify again.
. We note that even if the destruction of Shkembi's uncle’s store (which Shkembi witnessed) could be deemed to be persecution of the uncle, it does not constitute past persecution of Shkembi. See Wang v. Gonzales, 405 F.3d 134, 142-44 (3d Cir.2005). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479825/ | *219OPINION
AMBRO, Circuit Judge.
A jury found Anthony Alston guilty of interfering with interstate commerce by robbery (in violation of 18 U.S.C. § 1951), carrying and using a firearm during a crime of violence (in violation of 18 U.S.C. § 924(c)), and possessing a firearm as a convicted felon (in violation of 18 U.S.C. § 922(g)). The District Court sentenced him to 30 years’ imprisonment. Alston now challenges his conviction and sentence. We affirm both.1
I.
This case arises from a robbery of a jewelry store, owned by Alex Patlakh, in December 2003. Patlakh was serving Alston at the store counter when a third man buzzed to enter the store. This third man entered and pointed a gun at Patlakh, but fled when Patlakh told him the police had been notified. Patlakh then accused Alston of knowing the third man, pulled out a gun, and ordered Alston to the floor. According to Patlakh, Alston grabbed money from the counter and started shooting at Patlakh, striking him in the arm. Patlakh also fired his gun, injuring Alston. When Patlakh ran out of ammunition, he ran to the back of the store to get another gun. Alston followed and the two continued fighting.
The police arrived to find Alston throwing money out of his pockets, and Patlakh holding a gun. In Alston’s pockets, the police found a phone bill addressed to Pat-lakh and over $650 cash. In a trash can at the back of the store, they found a nine-millimeter gun that had been stolen from Alston’s landlord. The police later determined that three of the cartridge cases found at the scene came from this gun.
At trial, Alston testified that he was an innocent bystander, caught in the crossfire between Patlakh and the third man. Alston claimed he did not have a gun at the store, did not take money from the counter, and that the cash found in his pockets was his. As for the money he was throwing out of his pockets when the police arrived, he claimed that Patlakh had stuffed it into Alston’s jacket to frame him. The jury found him guilty.
II.
Alston makes three primary arguments on appeal: (1) the Government exercised peremptory challenges on the basis of race; (2) a witness’s improper reference to Alston’s parole status warranted a mistrial; and (3) the District Court abused its discretion in excluding evidence that the gun used by Patlakh had been stolen. We address each in turn.2
A.
Alston argues that the Government struck potential jurors from the jury pool on account of their race in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Specifically, Alston challenges the strikes of Jurors 38 *220(a black female) and 136 (a black male). (App. 120, 233.)
Under the three-step Batson procedure, (1) a defendant can establish a prima facie case for unlawful discrimination by pointing to evidence that gives rise to an inference thereof; (2) the burden shifts to the Government to state race-neutral reasons for exercising its strikes; and (3) the District Court must then decide whether the defendant has shown purposeful discrimination. Batson, 476 U.S. at 96-98, 106 S.Ct. 1712.
Here, the Court bypassed step one and asked the Government to state its grounds for exercising the strikes.3 (App. 233.) The Government explained that it struck Juror 38 because she frowned throughout jury selection and appeared to give the prosecutor “a dirty look” when he made eye contact with her. (App. 234.) It struck Juror 136 because he had not “crack[ed] a smile” or chatted with the other jurors, and was staring at the prosecutor. (Id.) The Court credited these explanations, ruling that it was “satisfied with [the prosecutorj’s recital as to the Jury.” (App. 235.)
Alston argues that the District Court was required to make specific find-mgs concerning the jurors’ demeanors, but failed to do so. However, it is evident the Court credited the prosecutor’s explanation as to both jurors, and we give deference to this decision. See Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (“[Evaluation of the prosecutor’s state of mind based on demeanor and credibility lies peculiarly within a trial judge’s province.”) (internal quotation marks and citation omitted). Before the District Court, Alston did not challenge the Government’s race-neutral reasons. He bore the burden of persuading the Court that the Government’s reasons were pretextual, yet he made no attempt to do so (and does not on appeal). In this context — where one race-neutral reason was given and the defense did not argue the reason was pretextual— we cannot say the Court erred in failing to comment specifically on the jurors’ de-meanors.4 Thus, we affirm the Court’s rejection of Alston’s Batson claim.
B.
The District Court ruled in limine that the Government could not introduce at trial evidence that Alston was on parole when he was arrested for the robbery. Howev*221er, a Government witness referenced Alston’s parole status during her testimony, which Aston argues warranted a mistrial. “We review the denial of a motion for a mistrial based on a witness’s allegedly prejudicial comments for an abuse of discretion.” United States v. Lore, 430 F.3d 190, 207 (3d Cir.2005).
The improper comment came during the Government’s direct examination of Aston’s landlord, from whom the gun used in the robbery was stolen:
Q. And how did — how was it that [the defendant] became a tenant of yours? Can you just describe what happened?
A. Uhm, let’s see, during the time he was working at Spaghetti Warehouse he was saying that he was on parole or something like that, he had—
Defense Counsel: Objection, Your Hon- or.
The Witness: I’m sorry.
Defense Counsel: Can I see the Court at sidebar?
The Court: Jury will disregard that statement. We have no foundation anyhowf,] so it’s to be disregarded.
(App. 517.) At the end of the direct examination, defense counsel asked for a conference at sidebar and moved for a mistrial based on the witness’s statement. (App. 527-28.) The Court denied the motion, reasoning that the Government did not intend to elicit the testimony, the response was an “unfortunate consequence,” a curative instruction had been given, and the statement did not taint the entire case. (App. 529-30.)
Three factors guide our review: “(1) whether [the witness’s] remarks were pronounced and persistent, creating a likelihood they would mislead and prejudice the jury; (2) the strength of the other evidence; and (3) curative action taken by the district court.” Lore, 430 F.3d at 207. Applying these factors, we have no trouble concluding the landlord’s remark did not warrant a mistrial. First, the remark was not “pronounced and persistent,” but instead a singular reference. Second, the evidence against Aston was strong: a gun used to fire several shots during the robbery had been stolen from Aston’s landlord and was found in a trash can in the back of the store (where Aston admits the third man did not go); Aston was seen throwing money from his pockets when the police arrived; and the police found Pat-lakh’s telephone bill in Aston’s pockets, along with a large amount of cash. Moreover, the jury was already aware that Alston had a criminal history, as it was an element of the felon-in-possession charge. Third, the Court immediately gave a curative instruction, and noted that the witness’s statement was without foundation. Thus, we easily conclude the Court did not abuse its discretion in denying a mistrial.
C.
At trial, Patlakh testified that he pm-chased his gun about ten years earlier from a gun store in Philadelphia. Aston sought to present evidence, through testimony from the purported registered owner of the gun, a Mr. Muto, that this gun had been stolen in 1996 from Muto’s truck.5 The Court did not allow the evidence, a ruling we review for abuse of discretion. See United States v. Saada, 212 F.3d 210, 220 (3d Cir.2000).
On appeal, Aston argues that this testimony would have (1) established Patlakh’s motive to lie about what happened in the jewelry store (to avoid prosecution for possession of a stolen gun), and (2) sup*222ported “Mr. Alston’s description of [Pat-lakh] as an aggressive vigilante who had attacked Mr. Alston for no reason.” (Appellant’s Br. 25.) We do not agree, as the links needed to reach these conclusions are too tenuous. As the Government pointed out at trial, Muto did not know who had stolen his gun or what happened to the gun after it was stolen. (App. 608.) Accordingly, even if Muto had been permitted to testify that his gun was stolen, that testimony would not have established that Patlakh stole the gun or that he knew the gun was stolen. (App. 609.) Moreover, Alston has not explained how Patlakh’s alleged possession of a stolen gun supports his (Alston’s) theory that Patlakh was an “aggressive vigilante.” Thus, we cannot conclude the Court abused its discretion in excluding this evidence.
For these reasons, we affirm Alston’s conviction and sentence.
. The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
. Alston's other two contentions — that the jury instruction on interstate commerce was erroneous, and that his Fifth and Sixth Amendment rights were violated when the District Court sentenced at the mandatory minimum based on facts not found by a jury — are raised only to preserve them for possible Supreme Court review. He concedes they are foreclosed by, respectively, United States v. Urban, 404 F.3d 754 (3d Cir.2005), and Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). See also Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Therefore, we do not discuss these claims further.
. "[A]ny issue regarding the existence of a prima facie showing of discrimination becomes moot where, as in this case, the prosecutor offers an explanation of the peremptory challenge before the district court has expressly addressed the prima facie issue.” United States v. Uwaezhoke, 995 F.2d 388, 392 (3d Cir.1993) (alteration and quotation marks omitted).
. Alston's reliance on Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008), is unpersuasive. There, the Government gave two race-neutral reasons for striking a juror — demeanor and student-teaching obligations — and the trial court denied the Batson claim without explanation. Id. at 478-79, 128 S.Ct. 1203.- The Supreme Court reversed because it could not determine from the record which of the two neutral reasons the trial court accepted. See id. at 479, 128 S.Ct. 1203 (because “the record d[id] not show that the trial judge actually made a determination concerning [the juror’s] demeanor,” the Court could not "presume that the trial judge credited the prosecutor's assertion that [the juror] was nervous”).
Unlike in Snyder, we properly may "presume that the trial judge credited the prosecutor's assertion” regarding the jurors' demean-ors, because demeanor was the only race-neutral reason given. Id. (Further, we note that defense counsel in Snyder disputed both of the Government’s explanations, id. at 478, 128 S.Ct. 1203, whereas here defense counsel did not dispute the prosecutor's explanation at all.)
. Alston’s brief to us asserts the District Court prohibited him from introducing this evidence through a "testifying ATF agent,” but the record shows the defense attempted to introduce the testimony through Mulo. (App. 606.) | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479827/ | OPINION
PER CURIAM.
Hamza Delki has filed a petition for review of the final order by the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ” ’s) denial of Delki’s requests for asylum, withholding of removal, and protection under the Conven*223tion Against Torture (“CAT”). For the reasons that follow, we will deny the petition for review.
The parties are familiar with the background of this case, and so we provide only a summary of the proceedings. Hamza Delki is a citizen of Israel. He arrived in the United States in 2002 on a tourist visa, returned to Israel, then returned to the United States in 2004 on another tourist visa. He overstayed his visa and was placed in removal proceedings. He conceded removability, and in July 2007 he applied for asylum, withholding of removal, and CAT relief. On February 25, 2008, the IJ conducted a hearing on Delki’s claim that he feared returning to Israel.
Delki testified at the hearing that he lived in Dirhanna, a village of Christians and Muslims in the northern part of Israel, near Lebanon. He was a mathematics teacher. He served for two or three months in the military, but because he had not finished his two-year service obligation, he was unable to obtain a teaching position in Israel. Delki conceded that he waited more than one year to apply for asylum after his 2004 arrival in the United States, explaining that he married a United States citizen in 2005. He noted that his marriage was considered to be unacceptable in his community in Israel; ultimately he and his wife divorced. Delki further explained that a war broke out between Israel and Lebanon in mid-2006. His hometown was near the area being shelled, and his family advised him that it was too dangerous for him to return, although his family did not relocate.
Delki stated that he was afraid to return to Israel because of the “talk nowadays about the war,” his relationship with an American girlfriend, his new lifestyle in the United States, and better teaching opportunities in the United States. He also noted that the Israeli government would possibly jail him due to the circumstances of his military service delinquency; he had obtained a six-month deferment, traveled to the United States, and never returned. Delki testified that the Israeli military telephoned his family’s home, and when informed that Delki was in the United States, the message was that Delki would be contacted upon his return to Israel. Delki stated that no problem arose, but he feared returning to Israel and being forced to serve the remainder of his military service time on the front lines of the fighting, because as an Arab living near the border of Lebanon, he had greater knowledge of the terrain. He also described his concerns about fanatic Muslim groups in his community that had labeled him a traitor for having served in the Israeli military, even though those groups had not done harm to him or his family thus far.
In his asylum application affidavit, Delki stated that his fear of returning to Israel was based on his marriage to a non-Muslim American citizen in 2005, which would cause him to be viewed as Americanized and a traitor to Muslim fundamentalists. When asked why his application statement did not mention his fear of returning to Israel because of the war, his military obligation, or his employment difficulties, Delki explained that he did not remember what he had written, and his application was supposed to contain that information.
The IJ found that Delki did not testify credibly. The IJ also determined that Delki had not met his burden of proof for asylum, withholding, or CAT relief, even assuming his testimony were credible. Further, the IJ concluded that the asylum application was untimely. The IJ denied relief and ordered removal to Israel if Delki did not depart voluntarily. On April 14, 2008, the BIA dismissed Delki’s appeal. The BIA found no clear error in the IJ’s adverse credibility finding and accordingly found no error in the denial of asylum and *224withholding relief. The BIA noted that it did not reach the question of whether Delki would have established eligibility for relief assuming that his testimony was credible, and further noted that it need not address the issue of whether the asylum application was untimely. In addition, the BIA concluded that Delki had not met his burden of proof on his CAT claim. This petition for review followed.1
To the extent that the BIA deferred to the IJ’s findings, we will review the IJ’s decision as supplemented by the BIA. See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.2004). We review these findings, including any credibility determinations, under a substantial evidence standard. See Cao v. Att’y Gen., 407 F.3d 146, 152 (3d Cir.2005). The Court must uphold the credibility determination of the BIA unless “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We do not overturn a credibility finding simply because we would make a different finding. See Gabuniya v. Attorney General, 463 F.3d 316, 321 (3d Cir.2006).
Substantial evidence supports the adverse credibility determination.2 The BIA relied on the IJ’s determination, citing the material difference between Delki’s testimony and his asylum application statement regarding his fear of returning to Israel. Indeed, as noted above, Delki’s testimony focused on fears related to his military service obligation and related employment difficulties, while his asylum application did not relate those fears. Delki provided little explanation for the more expansive explanation of his fears in his testimony, and the inconsistency concerns the heart of his claim for relief. Delki argues that his failure to file an asylum application that is not as complete as his testimony does not require the conclusion that his testimony was not credible, and he cites Smolniakova v. Gonzales, 422 F.3d 1037, 1045 (9th Cir.2005), in support. However, this Court has recognized that material omissions in the asylum statement can support an adverse credibility determination. See, e.g., Xie, 359 F.3d at 242-43 (involving omission of the alien’s wife’s sterilization in the application when that fact was advanced at the hearing as the very basis for the claim).3
We now address Delid’s CAT claim. Delki argues that he has shown that members of the Israeli military would torture him by forcing him to complete his military service and to commit human rights violations upon his people. He also suggests that he has met the standard for CAT relief by showing that the government of Israel demonstrates willful blindness to the torture of its citizens. However, we note that it is not enough for public officials to be “willfully blind” to torturous acts. To constitute torture, the officials must “have the goal or purpose of inflicting severe pain or suffering.” Pierre v. Att’y Gen., 528 F.3d 180, 190 (3d Cir.2008) *225(en banc). The record here does not compel the conclusion that Delki “more likely than not” would be tortured if he returned to Israel. See Tarrawally v. Ashcroft, 338 F.3d 180, 187 (3d Cir.2003); 8 C.F.R. § 208.16(c)(2).
We will deny the petition for review.
. We have jurisdiction over the timely petition for review pursuant to 8 U.S.C. § 1252(a).
. Delia's asylum application was filed after May 11, 2005, and thus the provisions of the REAL ID Act apply. See Chukwu v. Att'y Gen., 484 F.3d 185, 189 (3d Cir.2007). The REAL ID Act provides that an adverse credibility determination can be based on inconsistencies, inherent implausibilities, inaccuracies, and other factors, without regard to whether they go to the heart of an applicant's claim. 8 U.S.C. § 1158(b)(l)(B)(iii). As will be noted, the factors relied upon by the IJ in this case concerned matters that are central to Delki’s claim.
.Delki argues that the IJ's determination that the asylum application was untimely was erroneous because he established extraordinary circumstances to excuse his untimely filing. We do not reach this issue because substantial evidence supports the agency's adverse credibility finding. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479829/ | OPINION
PER CURIAM.
Rodolphe Nogbou petitions for review of an order of the Board of Immigration Appeals (“BIA”) dismissing his appeal from an Immigration Judge’s (“IJ”) final order of removal. We will deny the petition for review.
Nogbou is a native and citizen of Cote d’Ivoire. He entered the United States at an unknown time and place. He applied for adjustment of status under legalization laws, but the application was denied in 2005.1 He was charged with removability pursuant to Immigration and Nationality Act § 212(a)(6)(A)® [8 U.S.C. § 1182(a)(6)(A)® ] for being present in the United States without having been admitted or paroled. He testified that he had been admitted, A.R. 211, 213; but “could not say when he entered and how he had *234obtained legal status.” A.R. 1 (BIA decision). Nogbou did not apply for any relief, but sought a continuance to await the conclusion of an appeal in a criminal case for assaulting a federal officer, and to await the outcome of civil cases he had filed. A.R. 217, 221. The IJ denied the continuance, noting that he was not being removed on the basis of his criminal conviction. The BIA dismissed the appeal. The BIA found that Nogbou had not met his burden of establishing that he was legally present in the United States, found that he was removable, and found a continuance was not warranted. Nogbou, proceeding pro se, filed a timely petition for review.2
We discern the following issues in Nog-bou’s brief: (1) the Government improperly used facts from his legalization application to charge him with being removable; (2) his criminal conviction pending on appeal was improperly used as a basis for the removal order; (3) the BIA improperly held that he had the burden of proving admissibility; (4) Nogbou was denied a fair opportunity to appeal because the Government submitted inaccurate and detrimental documents to the BIA but never served those documents on Nogbou; (5) the Government should be estopped from removing him based on affirmative misconduct by government officials; (6) he was denied procedural due process; (7) he was denied substantive due process; (8) his right to equal protection was violated; and (9) the IJ improperly denied him the right to stay until his criminal and civil cases were concluded. Nogbou asks the Court to dismiss the removal order and grant his application for adjustment of status under the legalization laws.
We first consider the basis of the finding that Nogbou is removable: his illegal entry without inspection. The Immigration Reform and Control Act of 1987 (“IRCA”), included a provision preventing the Government from using information provided in a legalization application “for any purposes other than processing that application, enforcing penalties for false statements in the application, or fulfilling reporting requirements to Congress.” Arreola-Arellano, 223 F.3d at 655; 8 U.S.C. § 1255a(c)(5) [INA § 245A(c)(5)]. However, there is no indication that the Government used information from Nogbou’s legalization application in deciding to commence removal proceedings against him. It appears that Nogbou came to the Government’s attention because of the criminal charges against him. IRCA does not prevent the Government from checking a legalization file to see if the application has been granted or denied. Arreola-Arellano, 223 F.3d at 656.
Here, because Nogbou’s application had been denied, the Government could remove him on the basis of his illegal entry.3 Nogbou did not meet his burden of showing that he had entered the United States legally. See 8 U.S.C. § 1361 [INA § 291]. Further, the fact that Nogbou had at one time applied for legalization did not insulate him from later removal. In fact, IRCA contemplated the review of the denial of a legalization application in later deportation proceedings. See 8 U.S.C. § 1255a(f)(4)(A) [INA § 245A(f)(4)(A)]; Reno v. Catholic Social Services, Inc., 509 U.S. 43, 54, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993).4
*235The remainder of Nogbou’s arguments are equally without merit. The documents that Nogbou alleges were provided ex paHe to the BIA (although the Government states they were served on Nogbou) did not form the basis of the BIA’s decision against him. Nogbou was given a full and fair opportunity to present his claims, he was not denied the equal protection of the law, and he has not presented any basis to estop the Department of Homeland Security from removing him. Lastly, the IJ did not abuse his discretion by denying a continuance to allow Nogbou to remain in the United States pending the disposition of his unrelated criminal appeal and civil suits.
For the foregoing reasons, we will deny the petition for review.
. See Immigration Reform and Control Act of 1987 ("IRCA”), 8 U.S.C. § 1255a [INA § 245A]. IRCA "allow[ed] undocumented aliens who ha[d] resided continuously in the United States since January 1, 1982, to apply lo the INS for legal resident status, despite the usual barrier of not having entered the United States legally.” Arreola-Arellano v. I.N.S., 223 F.3d 653, 655 (7th Cir.2000).
. On August 7, 2009, this Court denied Nog-bou's motion for a stay of removal.
. Nogbou's claim that he was found removable on the basis of his criminal conviction is belied by the record. A.R. 225 (Notice to Appear); A.R. 206-07 (IJ's decision); A.R. 2-3 (BIA's decision).
.However, we may not review the denial of Nogbou's legalization application, because he did not appeal the denial of his application to the Administrative Appeals Unit, as provided by statute. See 8 U.S.C. § 1255a(f)(3) [INA § 245A(f)(3)] (providing for single level administrative review of denial of application *235tor adjustment under legalization law); see also 8 U.S.C. § 1105a(c) (1996) (court may not review order of deportation unless alien bas exhausted administrative remedies); 8 U.S.C. § 1252(d)(1) (same). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479833/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nigist Assefa and her son, Emanuel Tesfaye, natives and citizens of Ethiopia, petition for review of an order of the Board of Immigration Appeals (“Board”) denying their motion to reopen. We deny the petition for review.
The denial of a motion to reopen is reviewed for abuse of discretion. The Board’s legal conclusions are reviewed de novo. INS v. Doherty, 502 U.S. 314, 323-24, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Zheng v. Holder, 562 F.3d 647, 651 (4th Cir.2009); Barry v. Gonzales, 445 F.3d 741, 744 (4th Cir.2006). We find no abuse of discretion or any errors of law in the Board’s decision. Accordingly, we deny the petition for review. 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/8479836/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeannie Largent Cosby appeals the district court’s order denying her motion for sentence reduction under 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Cosby, No. 1:07-cr-00033-MR-3 (W.D.N.C. July 31, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479837/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Billy Cogdill appeals the district court’s order granting summary judgment in favor of the Appellee on Cogdill’s claim for recovery under an accidental death insurance policy. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Cogdill v. American Gen. Assurance Co., 2009 WL 3261556 (D.S.C. Oct. 8, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479840/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
W. Walker Ware, IV, appeals the district court’s order granting summary judgment to the Defendants on Ware’s action under 42 U.S.C. § 1983 (2006) and Virginia common law. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Ware v. James City County, Va., 652 F.Supp.2d 693 (E.D.Va. 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials be*275fore 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/8479820/ | OPINION OF THE COURT
PER CURIAM.
Appellant, Lester Jon Ruston, is currently a civil detainee at the Federal Correctional Institution in Seagoville, Texas. Ruston filed a complaint in the United States District Court for the Eastern District of Pennsylvania pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In that complaint, Ruston claimed that D. Scott Dodrill, the Assistant Director Correctional Programs Division of the Federal Bureau of Prisons, violated several of his constitutional rights. More specifically, Ruston alleged that defendant Dodrill entered into conspiracies with numerous individuals to deprive him of, inter alia, his rights under the First, Thirteenth and Fourteenth Amendments. In an Order entered on September 30, 2009, the District Court dismissed the complaint in its entirety after concluding that it was frivolous on its face. This timely appeal followed.
We have jurisdiction over the instant appeal pursuant to 28 U.S.C. § 1291, and exercise plenary review. See Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.2003). Even affording Ruston the liberal construction due a pro se litigant under Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), we do not hesitate to conclude that the District Court committed no error in dismissing his complaint. A court need not credit as true *198factual allegations that are “fantastic” or “irrational and wholly incredible.” Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992). While taken individually, some of Ruston’s basic claims may not appear fantastic, the factual contentions underlying those allegations are clearly baseless when considering the details and expansiveness of the alleged conspiracies. See Neitzke v. Williams, 490 U.S. 319, 327-28, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Accordingly, because the District Court properly dismissed Ruston’s complaint and no substantial question is presented by this appeal, we will summarily affirm the order of dismissal. See Third Circuit LAR 27.4 and I.O.P. 10.6. Appellant’s various motions are denied. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479821/ | OPINION OF THE COURT
FUENTES, Circuit Judge:
Steven Fausnaught was convicted by a jury on all twelve counts in a third superseding indictment. The charges against him included conspiracy to distribute and possess with intent to manufacture and distribute methamphetamine and marijuana, in violation of 21 U.S.C. § 846. Fausnaught raises two issues on appeal. First, he argues that his conspiracy conviction should be vacated because there was a variance between the indictment and the proof presented at trial as to the existence of a single conspiracy and this variance prejudiced a substantial right. Second, he contends that the District Court erred at sentencing both by attributing to him a quantity of methamphetamine distributed by a co-defendant and by enhancing his sentence for possession of a firearm in connection with the offense. We find that no variance existed and that the District Court did not err at sentencing. Accordingly, we uphold Fausnaught’s conviction and affirm his sentence.
I.
Because we write primarily for the parties, we only discuss the facts and proceedings to the extent necessary for resolution of this case. Testimony presented to the jury at trial revealed that sometime in the early 1990s, Fausnaught began supplying marijuana on a consignment basis to Charles Sechler, Shane Mowrer, Timothy Moore, Robert Levan, and others. Faus-naught took over the role of his brother Michael, who had supplied marijuana up until his death from a drug overdose. Fausnaught “fronted” the product to these individuals: he would give drugs to them and they would in turn sell the drugs and
*200repay him from the proceeds. In December 1995, Fausnaught’s residence was raided by police.' During the raid, the police found marijuana, firearms, scales, packing material and money. They arrested Faus-naught. While in police custody, Faus-naught telephoned Moore and instructed him to contact the people that were fronted marijuana and owed him money in order to collect payment. Moore contacted Sechler, Levan and others and collected approximately $12,000, which was used as bail money for Fausnaught. The drug evidence obtained in the raid was ultimately suppressed and Fausnaught was not convicted of any related charges.
For a period following the raid, Faus-naught ceased supplying marijuana. In Fausnaught’s absence, Sechler began supplying Moore and others with marijuana that Levan transported from California. Fausnaught eventually resumed selling marijuana to Moore and John Rundle. Fausnaught, Sechler, and others also traveled together to Amsterdam to attend the Cannabis Cup, an international marijuana growing competition, to procure high-quality marijuana seeds for a grow operation in Sechler’s farmhouse.
In approximately 2000, both Fausnaught and Sechler began selling methamphetamine. Fausnaught sold methamphetamine to Rundle and Sechler sold methamphetamine to Moore. Moore testified that he would pick up methamphetamine from Sechler at the same time that Moore was picking up marijuana. This methamphetamine was stored in Sechler’s farmhouse, where marijuana was stored and grown. It also came from the same source, in California, from which Sechler obtained marijuana. Rundle testified that he obtained methamphetamine from Faus-naught starting sometime in 2000 and ending in October 2002, when Rundle’s residence was searched by police. Rundle had been buying marijuana from Faus-naught since approximately 1997 and continued to do so while purchasing methamphetamine.
During the months leading up to a January 2003 raid on their respective residences, Fausnaught and Sechler maintained regular contact. Indeed, pen register records show that between February and July 2002, the pair were in telephone contact with one another eighty-seven times. Additionally, between October 2002 and the date of the raid, Fausnaught and Sechler made telephone contact eighty-nine times. Furthermore, on October 7, 2002, police officers conducting surveillance saw Fausnaught at Sechler’s farmhouse, where a witness had testified marijuana and methamphetamine were stored. The two were seen loading something into Fausnaught’s vehicle.
On January 11, 2003, the police executed warrants on Fausnaught’s residence and Sechler’s residence and farmhouse. At Fausnaught’s residence, the police found guns, money, marijuana, a scale and packing material. The police raid on Sechler’s farmhouse yielded money, drug paraphernalia, and a number of objects — literature about cultivating marijuana, a shopping list, and empty seed bags from Amsterdam — suggesting a grow operation.
An initial indictment against Faus-naught, Rundle, David Benjamin and Moore was returned on February 11, 2003. It charged conspiracy to distribute methamphetamine and marijuana, as well as related crimes. Subsequent superseding indictments added other Defendants and removed Rundle and Moore. The third superseding indictment, which the grand jury returned on August 12, 2003, contained twelve counts against Fausnaught and Sechler. Fausnaught was charged with conspiracy to distribute and possess with intent to distribute in excess of 500 *201grams of methamphetamine and in excess of 100 kilograms of marijuana, in violation of 21 U.S.C. § 846, as well as related offenses.
On July 30, 2007, following a six-day trial, Fausnaught and Sechler were convicted on all charges levied against them in the third superseding indictment. Fausnaught was found to have an offense level of 40 under the sentencing guidelines because his offense involved at least 15 kilograms of methamphetamine and 100 kilograms of marijuana and dangerous weapons were possessed in connection with the offense. As a result, Fausnaught’s advisory sentencing guidelines range was 292 months to 365 months in prison. Faus-naught was subsequently sentenced on December 29, 2008 to 292 months in prison, followed by five years of supervised release, and was ordered to pay a special assessment of $900.
Thereafter, Fausnaught filed this appeal.
II.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have appellate jurisdiction under 28 U.S.C. § 1291.
A. Variance between the indictment and the evidence at trial
We must vacate a conviction “when (1) there is a variance between the indictment and the proof presented at trial and (2) the variance prejudices a substantial right of the defendant.” United States v. Kelly, 892 F.2d 255, 258 (3d Cir.1989); see also United States v. Kemp, 500 F.3d 257, 287 (3d Cir.2007). Fausnaught argues that a variance exists in his case, because, while the indictment charged a single conspiracy, at trial the Government proved multiple conspiracies. Fausnaught contends that, as a result of this alleged variance, the jury heard extensive evidence about drug sales and weapons possession that would have been otherwise inadmissible, and that this consequently prejudiced him.
To distinguish between single and multiple conspiracies, we generally consider three factors: (1) whether the conspirators shared a common goal; (2) whether the agreement “contemplated bringing to pass a continuous result that will not continue without the continuous cooperation of the conspirators;” and (3) “the extent to which the participants overlap in the various dealings.” Kelly, 892 F.2d at 259 (internal citations and quotations omitted). The absence of one of these factors, however, “does not necessarily defeat an inference of the existence of a single conspiracy.” United States v. Padilla, 982 F.2d 110, 115 (3d Cir.1992). Whether a single conspiracy or multiple conspiracies exist is a fact question that is entrusted to the jury and which we will sustain if there is substantial evidence to support the jury’s determination. United States v. Perez, 280 F.3d 318, 345 (3d Cir.2002). We review the record in the light most favorable to the government. Kemp, 500 F.3d at 287.
The first factor we consider is whether there was a common goal among the conspirators. In assessing whether the defendants shared a common goal, we look to the underlying purpose of the alleged criminal activity. See, Kelly, 892 F.2d at 259. In Kelly, the “common goal of all the participants was simply to make money selling ‘speed.’ ” Id. Similarly, the common goal among Fausnaught, Sechler, and their coconspirators was to make money from selling drugs. This was a goal that Fausnaught, Sechler, and others pursued through coordinated efforts from prior to 1995 through 2003.
Next, we consider whether the conspirators’ agreement sought to accomplish a continuous result that would not persist without the continuous cooperation of the *202conspirators. We have considered this element satisfied where the “evidence supports a finding that the activities of others were necessary or advantageous to the success of another aspect of the scheme or to the overall success of the venture.” United States v. Salmon, 944 F.2d 1106, 1117 (3d Cir.1991) (citation and internal quotations omitted). Fausnaught argues that there were no continuous results intended, nor was there continuous cooperation, as he dropped out of the picture for a brief period of time following the 1995 raid on his home. Testimony revealed, however, that the conspiracy persisted and that Fausnaught shortly returned to it. Moreover, there is no indication that he attempted to withdraw from the conspiracy. See United States v. Kushner, 305 F.3d 194, 198 (3d Cir.2002) (noting that withdrawal from a conspiracy requires more than the cessation of criminal activity and typically demands either confession to the proper authorities or communication to one’s co-conspirators that an individual has abandoned the enterprise and its objectives). The record at trial included substantial evidence of activities by members of the conspiracy that were necessary to further its overall purpose of making money through the sale of drugs. This included, inter alia, the transportation of drugs; the supply, distribution and sale of the drugs; storage of the drugs at the residences of members of the conspiracy; and travel to Amsterdam to obtain materials for the growing of marijuana.
Finally, we consider the extent to which participants overlap in the various dealings. “ ‘[T]he government need not prove that each defendant knew all the details, goals, or other participants’ in order to find a single conspiracy,” Kelly, 892 F.2d at 260 (citation and internal quotations omitted). Here, there is significant overlap between the participants, as Faus-naught concedes in his brief. We note just a few points of overlap. Moore purchased marijuana from both Sechler and Faus-naught at different points in time. He continued to purchase marijuana from Fausnaught at the same time that he was purchasing methamphetamine from Sech-ler. Levan both purchased marijuana distributed by Fausnaught and transported maxijuana for Sechler. Fausnaught and Sechler traveled to Amsterdam together to obtain marijuana seeds. At Fausnaught’s request, Moore contacted other members of the conspiracy to obtain money they owed to Fausnaught in order to help him in making bail. This and other evidence presented at trial reveal sufficient overlap to prove a single conspiracy.
Our analysis is not affected by the fact that the evidence only established that Sechler supplied methamphetamine to Moore and Fausnaught supplied it to Run-dle. “[A] finding of a master conspiracy with sub-schemes does not constitute a finding of multiple, unrelated conspiracies and, therefore, would not create an impermissible variance.” United States v. Smith, 789 F.2d 196, 200 (3d Cir.1986). Given the network of overlapping interactions among the Defendants, with the shared goal of making money from the sale of drugs, the jury did not err in finding a single conspiracy involving both marijuana and methamphetamine. Having found that no variance existed, we need not address Fausnaught’s arguments regarding prejudice.
B. Sentencing issues
Fausnaught argues that the District Court erred at sentencing when it attributed to him a quantity of methamphetamine distributed by Sechler. We review for clear error the District Court’s findings of fact regarding the relevant quantity of drugs attributable at sentencing. United States v. Gibbs, 190 F.3d 188, 197 (3d Cir.1999); see also United States *203v. Grier, 475 F.3d 556, 570 (3d Cir.2007) (“[T]his Court will continue to review factual findings relevant to the Guidelines for clear error and to exercise plenary review over a district court’s interpretation of the Guidelines.”) Under Section lB1.3(a)(l)(B) of the Sentencing Guidelines, a defendant’s base offense level is determined by considering, among other factors,
in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.
We have held that “whether an individual defendant may be held accountable for amounts of drugs involved in reasonably foreseeable transactions conducted by co-conspirators depends upon the degree of the defendant’s involvement in the conspiracy.” United States v. Collado, 975 F.2d 985, 995 (3d Cir.1992). We assess involvement by considering whether the co-conspirator’s drug transactions were: (1) “in furtherance of the ... jointly-undertaken activity;” (2) “within the scope of the defendant’s agreement;” and (3) “reasonably foreseeable in connection with the criminal activity the defendant agreed to undertake.” See id. (quoting U.S.S.G. § 1B1.3).
Fausnaught argues that Sechler’s methamphetamine transactions should not be attributed to him because, while the two had prior dealings involving marijuana, there was “no proof that the two shared suppliers or customers” for methamphetamine. (Appellant’s Br. at 22.) The jury convicted Fausnaught and Sechler of participating in a conspiracy to distribute both marijuana and methamphetamine. Faus-naught and Sechler played central roles within this conspiracy. The evidence showed that Fausnaught and Sechler frequently spoke to each other by telephone and met in person during the period in which they were distributing methamphetamine. Police officers observed Faus-naught with Sechler moving a package from Sechler’s farmhouse, in which a witness testified that methamphetamine was stored, into Fausnaught’s car. Given this and other evidence in the record, we find no basis to conclude that the District Court erred when it determined that the methamphetamine distributed by Sechler was within the scope of and in furtherance of the conspiracy proven at trial and that this transaction was reasonably foreseeable to Fausnaught.
Fausnaught also argues that the District Court erred by enhancing his offense level by two levels for possession of a dangerous weapon in connection with the offense. Fausnaught did not raise this objection at sentencing. The commentary to U.S.S.G. § 2Dl.l(b)(l) states that this enhancement should be applied when a weapon is present unless it is “clearly improbable that the weapon was connected with the offense.” United States v. Drozdowski, 313 F.3d 819, 820 (3d Cir.2002). A rifle and shotgun were found in Fausnaught’s residence during the search on January 11, 2003, a search that also yielded marijuana, methamphetamine, a scale, cash, an owe sheet, and drug paraphernalia. Guns had also been found, with drugs and related materials, during the December 1995 search of Fausnaught’s residence. The inventory receipt from that search was admitted into evidence at the trial, as well as two of the guns seized. Additional firearms, and drugs, were found in the search of the residence of John Rundle, one of Fausnaught’s coconspirators. Given these facts, we find that it was not clearly improbable that the guns found in Fausnaught’s residence were connected to the drug conspiracy.
*204For the foregoing reasons, we affirm Fausnaught’s conviction for conspiracy as well as his sentence. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479826/ | *219OPINION
AMBRO, Circuit Judge.
A jury found Anthony Alston guilty of interfering with interstate commerce by robbery (in violation of 18 U.S.C. § 1951), carrying and using a firearm during a crime of violence (in violation of 18 U.S.C. § 924(c)), and possessing a firearm as a convicted felon (in violation of 18 U.S.C. § 922(g)). The District Court sentenced him to 30 years’ imprisonment. Alston now challenges his conviction and sentence. We affirm both.1
I.
This case arises from a robbery of a jewelry store, owned by Alex Patlakh, in December 2003. Patlakh was serving Alston at the store counter when a third man buzzed to enter the store. This third man entered and pointed a gun at Patlakh, but fled when Patlakh told him the police had been notified. Patlakh then accused Alston of knowing the third man, pulled out a gun, and ordered Alston to the floor. According to Patlakh, Alston grabbed money from the counter and started shooting at Patlakh, striking him in the arm. Patlakh also fired his gun, injuring Alston. When Patlakh ran out of ammunition, he ran to the back of the store to get another gun. Alston followed and the two continued fighting.
The police arrived to find Alston throwing money out of his pockets, and Patlakh holding a gun. In Alston’s pockets, the police found a phone bill addressed to Pat-lakh and over $650 cash. In a trash can at the back of the store, they found a nine-millimeter gun that had been stolen from Alston’s landlord. The police later determined that three of the cartridge cases found at the scene came from this gun.
At trial, Alston testified that he was an innocent bystander, caught in the crossfire between Patlakh and the third man. Alston claimed he did not have a gun at the store, did not take money from the counter, and that the cash found in his pockets was his. As for the money he was throwing out of his pockets when the police arrived, he claimed that Patlakh had stuffed it into Alston’s jacket to frame him. The jury found him guilty.
II.
Alston makes three primary arguments on appeal: (1) the Government exercised peremptory challenges on the basis of race; (2) a witness’s improper reference to Alston’s parole status warranted a mistrial; and (3) the District Court abused its discretion in excluding evidence that the gun used by Patlakh had been stolen. We address each in turn.2
A.
Alston argues that the Government struck potential jurors from the jury pool on account of their race in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Specifically, Alston challenges the strikes of Jurors 38 *220(a black female) and 136 (a black male). (App. 120, 233.)
Under the three-step Batson procedure, (1) a defendant can establish a prima facie case for unlawful discrimination by pointing to evidence that gives rise to an inference thereof; (2) the burden shifts to the Government to state race-neutral reasons for exercising its strikes; and (3) the District Court must then decide whether the defendant has shown purposeful discrimination. Batson, 476 U.S. at 96-98, 106 S.Ct. 1712.
Here, the Court bypassed step one and asked the Government to state its grounds for exercising the strikes.3 (App. 233.) The Government explained that it struck Juror 38 because she frowned throughout jury selection and appeared to give the prosecutor “a dirty look” when he made eye contact with her. (App. 234.) It struck Juror 136 because he had not “crack[ed] a smile” or chatted with the other jurors, and was staring at the prosecutor. (Id.) The Court credited these explanations, ruling that it was “satisfied with [the prosecutorj’s recital as to the Jury.” (App. 235.)
Alston argues that the District Court was required to make specific find-mgs concerning the jurors’ demeanors, but failed to do so. However, it is evident the Court credited the prosecutor’s explanation as to both jurors, and we give deference to this decision. See Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (“[Evaluation of the prosecutor’s state of mind based on demeanor and credibility lies peculiarly within a trial judge’s province.”) (internal quotation marks and citation omitted). Before the District Court, Alston did not challenge the Government’s race-neutral reasons. He bore the burden of persuading the Court that the Government’s reasons were pretextual, yet he made no attempt to do so (and does not on appeal). In this context — where one race-neutral reason was given and the defense did not argue the reason was pretextual— we cannot say the Court erred in failing to comment specifically on the jurors’ de-meanors.4 Thus, we affirm the Court’s rejection of Alston’s Batson claim.
B.
The District Court ruled in limine that the Government could not introduce at trial evidence that Alston was on parole when he was arrested for the robbery. Howev*221er, a Government witness referenced Alston’s parole status during her testimony, which Aston argues warranted a mistrial. “We review the denial of a motion for a mistrial based on a witness’s allegedly prejudicial comments for an abuse of discretion.” United States v. Lore, 430 F.3d 190, 207 (3d Cir.2005).
The improper comment came during the Government’s direct examination of Aston’s landlord, from whom the gun used in the robbery was stolen:
Q. And how did — how was it that [the defendant] became a tenant of yours? Can you just describe what happened?
A. Uhm, let’s see, during the time he was working at Spaghetti Warehouse he was saying that he was on parole or something like that, he had—
Defense Counsel: Objection, Your Hon- or.
The Witness: I’m sorry.
Defense Counsel: Can I see the Court at sidebar?
The Court: Jury will disregard that statement. We have no foundation anyhowf,] so it’s to be disregarded.
(App. 517.) At the end of the direct examination, defense counsel asked for a conference at sidebar and moved for a mistrial based on the witness’s statement. (App. 527-28.) The Court denied the motion, reasoning that the Government did not intend to elicit the testimony, the response was an “unfortunate consequence,” a curative instruction had been given, and the statement did not taint the entire case. (App. 529-30.)
Three factors guide our review: “(1) whether [the witness’s] remarks were pronounced and persistent, creating a likelihood they would mislead and prejudice the jury; (2) the strength of the other evidence; and (3) curative action taken by the district court.” Lore, 430 F.3d at 207. Applying these factors, we have no trouble concluding the landlord’s remark did not warrant a mistrial. First, the remark was not “pronounced and persistent,” but instead a singular reference. Second, the evidence against Aston was strong: a gun used to fire several shots during the robbery had been stolen from Aston’s landlord and was found in a trash can in the back of the store (where Aston admits the third man did not go); Aston was seen throwing money from his pockets when the police arrived; and the police found Pat-lakh’s telephone bill in Aston’s pockets, along with a large amount of cash. Moreover, the jury was already aware that Alston had a criminal history, as it was an element of the felon-in-possession charge. Third, the Court immediately gave a curative instruction, and noted that the witness’s statement was without foundation. Thus, we easily conclude the Court did not abuse its discretion in denying a mistrial.
C.
At trial, Patlakh testified that he pm-chased his gun about ten years earlier from a gun store in Philadelphia. Aston sought to present evidence, through testimony from the purported registered owner of the gun, a Mr. Muto, that this gun had been stolen in 1996 from Muto’s truck.5 The Court did not allow the evidence, a ruling we review for abuse of discretion. See United States v. Saada, 212 F.3d 210, 220 (3d Cir.2000).
On appeal, Aston argues that this testimony would have (1) established Patlakh’s motive to lie about what happened in the jewelry store (to avoid prosecution for possession of a stolen gun), and (2) sup*222ported “Mr. Alston’s description of [Pat-lakh] as an aggressive vigilante who had attacked Mr. Alston for no reason.” (Appellant’s Br. 25.) We do not agree, as the links needed to reach these conclusions are too tenuous. As the Government pointed out at trial, Muto did not know who had stolen his gun or what happened to the gun after it was stolen. (App. 608.) Accordingly, even if Muto had been permitted to testify that his gun was stolen, that testimony would not have established that Patlakh stole the gun or that he knew the gun was stolen. (App. 609.) Moreover, Alston has not explained how Patlakh’s alleged possession of a stolen gun supports his (Alston’s) theory that Patlakh was an “aggressive vigilante.” Thus, we cannot conclude the Court abused its discretion in excluding this evidence.
For these reasons, we affirm Alston’s conviction and sentence.
. The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
. Alston's other two contentions — that the jury instruction on interstate commerce was erroneous, and that his Fifth and Sixth Amendment rights were violated when the District Court sentenced at the mandatory minimum based on facts not found by a jury — are raised only to preserve them for possible Supreme Court review. He concedes they are foreclosed by, respectively, United States v. Urban, 404 F.3d 754 (3d Cir.2005), and Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). See also Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Therefore, we do not discuss these claims further.
. "[A]ny issue regarding the existence of a prima facie showing of discrimination becomes moot where, as in this case, the prosecutor offers an explanation of the peremptory challenge before the district court has expressly addressed the prima facie issue.” United States v. Uwaezhoke, 995 F.2d 388, 392 (3d Cir.1993) (alteration and quotation marks omitted).
. Alston's reliance on Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008), is unpersuasive. There, the Government gave two race-neutral reasons for striking a juror — demeanor and student-teaching obligations — and the trial court denied the Batson claim without explanation. Id. at 478-79, 128 S.Ct. 1203.- The Supreme Court reversed because it could not determine from the record which of the two neutral reasons the trial court accepted. See id. at 479, 128 S.Ct. 1203 (because “the record d[id] not show that the trial judge actually made a determination concerning [the juror’s] demeanor,” the Court could not "presume that the trial judge credited the prosecutor's assertion that [the juror] was nervous”).
Unlike in Snyder, we properly may "presume that the trial judge credited the prosecutor's assertion” regarding the jurors' demean-ors, because demeanor was the only race-neutral reason given. Id. (Further, we note that defense counsel in Snyder disputed both of the Government’s explanations, id. at 478, 128 S.Ct. 1203, whereas here defense counsel did not dispute the prosecutor's explanation at all.)
. Alston’s brief to us asserts the District Court prohibited him from introducing this evidence through a "testifying ATF agent,” but the record shows the defense attempted to introduce the testimony through Mulo. (App. 606.) | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479828/ | OPINION
PER CURIAM.
Hamza Delki has filed a petition for review of the final order by the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ” ’s) denial of Delki’s requests for asylum, withholding of removal, and protection under the Conven*223tion Against Torture (“CAT”). For the reasons that follow, we will deny the petition for review.
The parties are familiar with the background of this case, and so we provide only a summary of the proceedings. Hamza Delki is a citizen of Israel. He arrived in the United States in 2002 on a tourist visa, returned to Israel, then returned to the United States in 2004 on another tourist visa. He overstayed his visa and was placed in removal proceedings. He conceded removability, and in July 2007 he applied for asylum, withholding of removal, and CAT relief. On February 25, 2008, the IJ conducted a hearing on Delki’s claim that he feared returning to Israel.
Delki testified at the hearing that he lived in Dirhanna, a village of Christians and Muslims in the northern part of Israel, near Lebanon. He was a mathematics teacher. He served for two or three months in the military, but because he had not finished his two-year service obligation, he was unable to obtain a teaching position in Israel. Delki conceded that he waited more than one year to apply for asylum after his 2004 arrival in the United States, explaining that he married a United States citizen in 2005. He noted that his marriage was considered to be unacceptable in his community in Israel; ultimately he and his wife divorced. Delki further explained that a war broke out between Israel and Lebanon in mid-2006. His hometown was near the area being shelled, and his family advised him that it was too dangerous for him to return, although his family did not relocate.
Delki stated that he was afraid to return to Israel because of the “talk nowadays about the war,” his relationship with an American girlfriend, his new lifestyle in the United States, and better teaching opportunities in the United States. He also noted that the Israeli government would possibly jail him due to the circumstances of his military service delinquency; he had obtained a six-month deferment, traveled to the United States, and never returned. Delki testified that the Israeli military telephoned his family’s home, and when informed that Delki was in the United States, the message was that Delki would be contacted upon his return to Israel. Delki stated that no problem arose, but he feared returning to Israel and being forced to serve the remainder of his military service time on the front lines of the fighting, because as an Arab living near the border of Lebanon, he had greater knowledge of the terrain. He also described his concerns about fanatic Muslim groups in his community that had labeled him a traitor for having served in the Israeli military, even though those groups had not done harm to him or his family thus far.
In his asylum application affidavit, Delki stated that his fear of returning to Israel was based on his marriage to a non-Muslim American citizen in 2005, which would cause him to be viewed as Americanized and a traitor to Muslim fundamentalists. When asked why his application statement did not mention his fear of returning to Israel because of the war, his military obligation, or his employment difficulties, Delki explained that he did not remember what he had written, and his application was supposed to contain that information.
The IJ found that Delki did not testify credibly. The IJ also determined that Delki had not met his burden of proof for asylum, withholding, or CAT relief, even assuming his testimony were credible. Further, the IJ concluded that the asylum application was untimely. The IJ denied relief and ordered removal to Israel if Delki did not depart voluntarily. On April 14, 2008, the BIA dismissed Delki’s appeal. The BIA found no clear error in the IJ’s adverse credibility finding and accordingly found no error in the denial of asylum and *224withholding relief. The BIA noted that it did not reach the question of whether Delki would have established eligibility for relief assuming that his testimony was credible, and further noted that it need not address the issue of whether the asylum application was untimely. In addition, the BIA concluded that Delki had not met his burden of proof on his CAT claim. This petition for review followed.1
To the extent that the BIA deferred to the IJ’s findings, we will review the IJ’s decision as supplemented by the BIA. See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.2004). We review these findings, including any credibility determinations, under a substantial evidence standard. See Cao v. Att’y Gen., 407 F.3d 146, 152 (3d Cir.2005). The Court must uphold the credibility determination of the BIA unless “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We do not overturn a credibility finding simply because we would make a different finding. See Gabuniya v. Attorney General, 463 F.3d 316, 321 (3d Cir.2006).
Substantial evidence supports the adverse credibility determination.2 The BIA relied on the IJ’s determination, citing the material difference between Delki’s testimony and his asylum application statement regarding his fear of returning to Israel. Indeed, as noted above, Delki’s testimony focused on fears related to his military service obligation and related employment difficulties, while his asylum application did not relate those fears. Delki provided little explanation for the more expansive explanation of his fears in his testimony, and the inconsistency concerns the heart of his claim for relief. Delki argues that his failure to file an asylum application that is not as complete as his testimony does not require the conclusion that his testimony was not credible, and he cites Smolniakova v. Gonzales, 422 F.3d 1037, 1045 (9th Cir.2005), in support. However, this Court has recognized that material omissions in the asylum statement can support an adverse credibility determination. See, e.g., Xie, 359 F.3d at 242-43 (involving omission of the alien’s wife’s sterilization in the application when that fact was advanced at the hearing as the very basis for the claim).3
We now address Delid’s CAT claim. Delki argues that he has shown that members of the Israeli military would torture him by forcing him to complete his military service and to commit human rights violations upon his people. He also suggests that he has met the standard for CAT relief by showing that the government of Israel demonstrates willful blindness to the torture of its citizens. However, we note that it is not enough for public officials to be “willfully blind” to torturous acts. To constitute torture, the officials must “have the goal or purpose of inflicting severe pain or suffering.” Pierre v. Att’y Gen., 528 F.3d 180, 190 (3d Cir.2008) *225(en banc). The record here does not compel the conclusion that Delki “more likely than not” would be tortured if he returned to Israel. See Tarrawally v. Ashcroft, 338 F.3d 180, 187 (3d Cir.2003); 8 C.F.R. § 208.16(c)(2).
We will deny the petition for review.
. We have jurisdiction over the timely petition for review pursuant to 8 U.S.C. § 1252(a).
. Delia's asylum application was filed after May 11, 2005, and thus the provisions of the REAL ID Act apply. See Chukwu v. Att'y Gen., 484 F.3d 185, 189 (3d Cir.2007). The REAL ID Act provides that an adverse credibility determination can be based on inconsistencies, inherent implausibilities, inaccuracies, and other factors, without regard to whether they go to the heart of an applicant's claim. 8 U.S.C. § 1158(b)(l)(B)(iii). As will be noted, the factors relied upon by the IJ in this case concerned matters that are central to Delki’s claim.
.Delki argues that the IJ's determination that the asylum application was untimely was erroneous because he established extraordinary circumstances to excuse his untimely filing. We do not reach this issue because substantial evidence supports the agency's adverse credibility finding. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479832/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding-precedent in this circuit.
PER CURIAM:
Michael S. Gorbey appeals the district court’s order accepting the magistrate judge’s recommendation that Gorbey’s claims, which the court construed as being 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), be dismissed. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Gorbey v. United States, 2009 WL 3190451 (S.D.W.Va. 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/8479834/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nigist Assefa and her son, Emanuel Tesfaye, natives and citizens of Ethiopia, petition for review of an order of the Board of Immigration Appeals (“Board”) denying their motion to reopen. We deny the petition for review.
The denial of a motion to reopen is reviewed for abuse of discretion. The Board’s legal conclusions are reviewed de novo. INS v. Doherty, 502 U.S. 314, 323-24, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Zheng v. Holder, 562 F.3d 647, 651 (4th Cir.2009); Barry v. Gonzales, 445 F.3d 741, 744 (4th Cir.2006). We find no abuse of discretion or any errors of law in the Board’s decision. Accordingly, we deny the petition for review. 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/8479835/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeannie Largent Cosby appeals the district court’s order denying her motion for sentence reduction under 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Cosby, No. 1:07-cr-00033-MR-3 (W.D.N.C. July 31, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479838/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Billy Cogdill appeals the district court’s order granting summary judgment in favor of the Appellee on Cogdill’s claim for recovery under an accidental death insurance policy. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Cogdill v. American Gen. Assurance Co., 2009 WL 3261556 (D.S.C. Oct. 8, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
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