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https://www.courtlistener.com/api/rest/v3/opinions/8479839/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.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https://www.courtlistener.com/api/rest/v3/opinions/8479842/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.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https://www.courtlistener.com/api/rest/v3/opinions/8479844/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wendy B. Dauberman petitions for a writ of mandamus, alleging the district court has unduly delayed acting on her 28 U.S.C.A. § 2255 (West Supp.2009) motion. She seeks an order from this court directing the district court to act. Our review of the district court’s docket reveals that the district court has denied Dauberman’s § 2255 motion, without prejudice. Accordingly, although we grant leave to proceed in forma pauperis, we deny the mandamus petition as moot. 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/8479846/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David J. Washington appeals the district court’s order accepting the magistrate *294judge’s report and recommendation, as modified, dismissing Washington’s complaint without prejudice and denying his motion for judgment. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Washington v. Propes, No. 4:09-cv-03050-RBH, 2010 WL 297796 (D.S.C. Jan. 21, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479849/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carolyn Annette Waker appeals the district court’s order dismissing her Americans with Disabilities Act complaint, 42 U.S.C.A. §§ 12101-12213 (West 2005 & Supp.2009), for failure to timely respond in accord with the court’s notice of December 3, 2009. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Waker v. Donald, No. 1:09-cv-01599-JFM (D.Md. Dec. 23, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479851/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cleveland McLean, Jr., petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his 18 U.S.C. § 3582 (2006) motion. He seeks an order from this court directing the district court to act. Although we find that mandamus relief is not warranted because the delay is not unreasonable, we deny the mandamus petition without prejudice to the filing of another mandamus petition if the district court does not act expeditiously. We grant leave to proceed in forma pauperis. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479854/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David J. Washington appeals the district court’s order accepting the recommendation of the magistrate judge and dismissing his complaint without prejudice. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the distinct court. Washington v. Harrelson, No. 4:09-cv-02745-RBH, 2010 WL 56060 (D.S.C. Jan. 4, 2010). We also deny Washington’s motions for an evidentiary hearing and judgment, and hearing to be heard in open court. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479843/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wendy B. Dauberman petitions for a writ of mandamus, alleging the district court has unduly delayed acting on her 28 U.S.C.A. § 2255 (West Supp.2009) motion. She seeks an order from this court directing the district court to act. Our review of the district court’s docket reveals that the district court has denied Dauberman’s § 2255 motion, without prejudice. Accordingly, although we grant leave to proceed in forma pauperis, we deny the mandamus petition as moot. 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/8479845/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David J. Washington appeals the district court’s order accepting the magistrate *294judge’s report and recommendation, as modified, dismissing Washington’s complaint without prejudice and denying his motion for judgment. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Washington v. Propes, No. 4:09-cv-03050-RBH, 2010 WL 297796 (D.S.C. Jan. 21, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479848/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anna M. Clayton appeals the district court’s order entering judgment for the Defendants on Clayton’s diversity action. We have reviewed the record and find no reversible error. Accordingly, we deny Clayton’s motion for appointment of counsel and affirm the judgment of the district court. Clayton v. Dickens, No. 7:08-cv-00592-gec-mfu (E.D.Va. Jan. 27, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479852/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cleveland McLean, Jr., petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his 18 U.S.C. § 3582 (2006) motion. He seeks an order from this court directing the district court to act. Although we find that mandamus relief is not warranted because the delay is not unreasonable, we deny the mandamus petition without prejudice to the filing of another mandamus petition if the district court does not act expeditiously. We grant leave to proceed in forma pauperis. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479855/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard Donnell Rudisill appeals the district court’s denial of his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Rudisill, No. 1:01-cr-00048-MR-7 (W.D.N.C. Jan. 15, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479857/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Johnny Lee Gore appeals the district court’s order denying his motion for a new *312trial filed under Rule 33 of the Federal Rules of Criminal Procedure, because the motion was untimely. We agree. Under Rule 33(b)(1), Gore had “3 years after the verdict or finding of guilty” to file his motion claiming he had newly discovered evidence. See Fed.R.Crim.P. 33(b)(1). The jury found Gore guilty on June 5, 2002. Because Gore did not file his Rule 33 motion until September 23, 2009, the motion was not timely. Accordingly, we affirm the district court’s denial of relief. 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/8479861/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Vernell Brown Randolph appeals the district court’s order denying relief on her third motion for reduction of sentence filed pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm *315for the reasons stated by the district court. United States v. Randolph, No. 4:04-cr-00024-JBF-TEM-1 (E.D.Va. Jan. 6, 2010). We deny Randolph’s motion for appointment of counsel. 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/8479863/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William G. Harden seeks to appeal the district court’s orders dismissing certain defendants and denying Harden’s motion to amend. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The orders Harden seeks to appeal are neither final orders nor appeal-able interlocutory or collateral orders. Accordingly, we dismiss the appeal for lack of jurisdiction. We deny Harden’s motion for appointment of counsel and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479865/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Richard D’Alessandro appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. D’Alessandro v. Montgomery County, No. 8:09-cv00190-PJM (D. Md. filed Jan. 20, 2009; entered Jan. 21, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479869/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Callixtus Onigbo Nwaehiri seeks to appeal the district court’s order denying his motion for a preliminary injunction preventing the Maryland State Board of Pharmacy (“Board”) from revoking his pharmacy license following his criminal convictions. As the Board has since issued a final order revoking Nwaehiri’s license, however, we dismiss the appeal as moot. 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 in the decisional process.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479963/ | OPINION
PER CURIAM.
Margarita Michulena, a citizen of Latvia, was admitted to the United States on October 22, 1998, as a non-immigrant student. She overstayed her admission period and was charged with removability pursuant to Immigration and Nationality Act (“INA”) § 237(a)(1)(B) [8 U.S.C. § 1227(a)(1)(B) ]. Michulena conceded re-movability but applied for asylum, withholding of removal, and relief under the United Nations Convention Against Torture (“CAT”), claiming that she was persecuted based on her sexual orientation as a lesbian.
Michulena claimed that she married her first husband in 1990, but that the relationship ended after they had lived together for approximately one year. In 1996, Mi-chulena began a relationship with Viktorija Timonina. Over the next two years, the couple was victimized by physical attacks, harassment, and vandalism. Michulena and Timonina traveled separately to the United States and, once here, began living together. Timonina’s asylum application was granted in September 2002. In November 2002, however, the couple broke up and Michulena started dating Alex Vargas, a United States citizen. Michulena married Vargas, although he later filed an affidavit with immigration authorities asserting that the marriage was not bona fide. Shortly thereafter, Michulena resumed her relationship with Timonina.
The Immigration Judge (“IJ”) found that Michulena was not credible, noting that her account contained numerous inconsistencies and was not adequately supplemented with documentary evidence.1 The Board of Immigration Appeals (“BIA”) concluded the IJ’s adverse credibility determination was not cleaiiy erroneous. Michulena filed a timely petition for review of the denial of her asylum claim. Because she does not challenge the denial of withholding of removal or relief under the CAT, we deem those arguments waived. See Bradley v. Att’y Gen., 603 F.3d 235, 242-43 n. 8 (3d Cir.2010) (holding that argument not raised in opening brief is waived).
“[W]hen the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). Our review of these decisions is for substantial evidence, considering whether they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Lin-Zheng v. Att’y Gen., 557 F.3d 147, 155 (3d Cir.2009) (en banc) (internal citation omitted). We will uphold *189an adverse credibility determination under the substantial evidence standard “ ‘unless any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Lin v. Att’y Gen., 543 F.3d 114, 119 (3d Cir.2008) (internal citation omitted). Adverse credibility determinations based on speculation or conjecture, rather than on record evidence, are reversible.2 See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). Furthermore, we must uphold a determination regarding the availability of corroborating evidence unless “a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable.” INA § 242(b)(4) [8 U.S.C. § 1252(b)(4)]; see also Sandie v. Att’y Gen., 562 F.3d 246, 252 & n. 3 (3d Cir.2009).
We agree with the Government that Mi-chulena “does not challenge the lion’s share of the agency’s adverse credibility determinations.” We note, however, that several of those determinations ai’e suspect, particularly the conclusion that Mi-chulena’s two marriages and the timing of her personal relationships undermined her allegation that she is a lesbian.3 Importantly, though, Michulena admitted that she changed her testimony concerning the date of an attack so that her story would match a medical report in the record. In particular, Michulena stated in her asylum application that she and Timonina were attacked on their way home from visiting friends in March 1998. She testified, however, that the attack occurred in October 1998, shortly before she traveled to the United States. When asked on cross-examination about this discrepancy, Michulena admitted that she corrected the date to October 1998 so that her testimony would correspond to a medical report prepared by a Latvian doctor, which listed Michule-na’s “date of discharge” as October 27, 1998. This admission adequately supports the adverse credibility determination. See Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.2007) (holding that “where an IJ’s finding of fabrication (supported by substantial evidence) serves as the basis for discrediting other evidence, a reviewing court is in no position to conclude that the discrediting of the remaining evidence is unsupported by substantial evidence.”).
Michulena suggested that the March 1998 date provided in her asylum application was a mistake, and that she only recognized this error after receiving the medical report. Accepting this argument, however, presents another significant inconsistency. Michulena testified that *190came to the United States on October 22, 1998. When asked to explain why the medical report listed her discharge date as October 27, 1998,4 Michulena testified that the “date of discharge” was in fact the date the report was prepared in response to a request made in connection with her asylum application. Indeed, the date which appears next to doctor’s signature is “27.10.98.” Notably, though, Michulena testified at an earlier hearing that she did not decide to seek asylum until September 1999, so there presumably would have been no reason to request the report in 1998. Moreover, Michulena’s explanation failed to account for the medical report’s indication that she was “clobbered in the street ... the last time on 17.10.98.” A.R. 716. In sum, we conclude that the record contains substantial evidence to support the adverse credibility finding and does not compel a contrary finding.
Michulena .argues that the IJ and the BIA failed to consider her explanations for the inconsistencies in the record. She does not identify the explanations which were allegedly ignored, and the IJ did indicate why Michulena’s explanations were insufficient and noted where she provided no explanation. Michulena also asserts that the IJ “demanded too much” corroborative evidence. We disagree. The IJ reasonably required Michulena to provide medical records and police reports related to specific treatment and attacks, especially considering that she had furnished similar documents as part of her application. See Toure v. Att’y Gen., 448 F.3d 310, 323 (3d Cir.2006). Michulena concedes “the medical evidence did not match exactly to the injuries that ... [she] stated occurred to her,” but contends that “there was no evidence that the injuries to which [she] testified did not occur.” Significantly, though, it is Michulena who carries the “ultimate burden of persuasion in making an asylum claim.” Yu v. Att’y Gen., 513 F.3d 346, 349 (3d Cir.2008).
For the foregoing reasons, we will deny the petition for review.
. Although Michulena filed her asylum application more than a year after she arrived in the United States, the IJ found that it was timely ''[b]y stipulation of the Department of Homeland Security.”
. The provisions of the REAL ID Act of 2005 that address our review of an adverse credibility finding do not apply in this case because Michulena applied for relief before the Act’s effective date. See Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir.2007).
. The IJ concluded that Michulena's two marriages were "so fundamentally inconsistent with her claimed social group membership that it shatters her credibility before the court.” The BIA clarified that the IJ "did not simply conclude from the fact that [Michule-na] was twice-married that her claim to be a lesbian was not credible. Rather, it was the timing of [Michulena’s] testimony on behalf of her putative partner's successful application for asylum, her marriage to a United States citizen and pursuit of adjustment of status, and then the reinstatement of her asylum claim based on sexual orientation immediately after the marriage ended that cause the [IJ] to cite this as a factor.” We believe, however, that neither Michulena’s marriage nor the timing of her relationships provide substantial evidence for concluding that she testified falsely regarding her sexual orientation. Mi-chulena suggested that she was bi-sexual but that "I think I'm more of a lesbian.” Moreover, it appears that she married her Latvian husband because he had raped her and she had become pregnant. When asked "why you as a lesbian decided to be married” in the United States, Michulena responded that she wanted to "live a nonnal life” and have children.
. Michulena was also asked on cross-examination why a police document indicated that she reported a theft in December 1998. A.R. 273, 707. Michulena claimed that she "submitted the complaint but my mother took that complaint [to the police] because I [had] already left." A.R. 273. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479964/ | OPINION
PER CURIAM.
Ergus Hamitaj petitions for review of an order of the Board of Immigration Appeals (“BIA”), which dismissed his appeal of an Immigration Judge’s (“IJ”) final order of removal. We will deny the petition for review.
Hamitaj is a native and citizen of Albania. He entered the United States in 2003. He was charged as attempting to enter through the visa waiver program when he was not eligible to do so. Hami-taj conceded that he was excludable on that basis, but he applied for asylum and related relief based on his involvement in Albania’s Democratic Party and its Youth Forum. The IJ found that Hamitaj was not credible, and denied all relief. The BIA found that the IJ’s adverse credibility finding was not clearly erroneous, that the expert report Hamitaj submitted did “nothing to cure the adverse credibility finding,” and that Hamitaj was not prejudiced by not receiving a signed copy of the IJ’s decision until the date his brief was due, as he had received an unsigned copy earlier. Hamitaj filed a timely petition for review.
We generally review only final decisions by the BIA. Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.2005). However, because the BIA substantially relied upon the IJ’s adverse credibility determination, we review both the BIA’s and the IJ’s decisions with regard to the credibility determination. See Xie v. Ashcroft, 359 F.3d 239, 241-42 (3d Cir.2004). We review legal conclusions de novo, see Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir.2003), and uphold factual determinations, including adverse credibility findings, if they are “supported by reasonable, substantial and probative evidence on the record considered as a whole.” Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir.2004). To reverse an adverse credibility finding, the evidence of credibility must be so strong “that in a civil trial [the alien) would be entitled to judgment on the credibility issue as a matter of law.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We have recognized that an IJ is normally in the best position to make a credibility determination and is “uniquely qualified to decide whether an alien’s testimony has about it the ring of truth.” Abdulrahman v. Ashcroft, 330 F.3d 587, 597 (3d Cir.2003) (quoting Sarvia-Quintanilla v. INS, 767 F.2d 1387, 1395 (9th Cir.1985)).
We conclude that the adverse credibility determination here rests upon substantial evidence. The IJ provided numerous specific and cogent reasons for concluding that Hamitaj lacked credibility, many of which go to the “heart” of his claims.1 See *195Berishaj v. Ashcroft, 378 F.3d 314, 323 (3d Cir.2004). The BIA particularly noted that: (1) the date that Hamitaj joined the Democratic Party was not clear; (2) one of the two attacks forming the basis of his claim was not included in his initial asylum application; (3) the initial application did not mention that a gun was put to his head; and (4) in general, Hamitaj’s more recent statement (“the second statement”) was seen as an embellishment.
The BIA’s first stated reason for upholding the adverse credibility finding is rather weak. Although Hamitaj argues that he consistently testified that he became an activist of the “Youth Forum of the Democratic Party” in 1998 when he was in high school, and that he joined the full party in 2002 when he turned eighteen, his assertion is belied by the record, as the Government asked him twice when he became a full member of the Democratic Party, and he twice answered that he did so in 1998. A.R. 195. However, he also explained that for him, the Youth Forum and the Democratic Party were “like the same.” Id. He may have felt that joining the Youth Forum was “full party” membership. Nevertheless, given the document Hamitaj submitted stating that he joined the Democratic Party in October 2002, and given his explanation that because the Party does not have computers, “they’ll just write anything,” A.R. 196; we do not feel compelled to overturn the adverse credibility finding on this basis. See Anderson v. City of Bessemer City, North Carolina, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (“[wjhere there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous”).
The BIA’s remaining reasons are related, as they all involve inconsistencies between Hamitaj’s statement in support of his initial asylum application and the second statement, which was filed at the direction of an IJ. In his second statement, Hamitaj stated that an attempt was made on his life in April 2002, when an unmarked car tried to strike him. A.R. 286. The statement says that he got a threatening anonymous phone call about the incident that night. Id. The April 2002 incident is not mentioned at all in Hamitaj’s initial statement. The second statement also sets forth in harrowing detail an incident in October 2002, when a man (not two men) pointed a gun, “mere inches” from his head (and even pulled the trigger, but no bullet fired), and threatened him to stop his political activity. A.R. 287. The initial statement references an incident “[b]y the end of 2002,” which might refer to the October, 2002 incident, but the description says that he was stopped and brutally beaten by “two masked and armed man [sic].” A.R. 358. While “[a]n applicant’s testimony is not per se lacking in credibility simply because it includes details that are not set forth in the asylum application,” see Cao v. Attorney General, 407 F.3d 146 (3d Cir.2005), we find it was not unreasonable for the BIA to believe that Hamitaj would not leave such compelling, graphic details out of his original application if they truly occurred. See Reynoso-Lopez v. Ashcroft, 369 F.3d 275, 279 (3d Cir.2004) (later embellishment of claim may support adverse credibility finding).2
The BIA concluded that the IJ’s adverse credibility finding was dispositive and relied upon it as the basis to deny Hamitaj’s *196appeal. “An alien’s credibility, by itself, may satisfy his burden, or doom his claim.” Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir.2003) (en banc). In this case, the adverse credibility determination dooms Hamitaj’s claim. Hamitaj bore the burden of supporting his asylum claim through credible testimony. Abdille v. Ashcroft, 242 F.3d 477, 482 (3d Cir.2001).3 He failed to meet that burden.
Accordingly, we will deny the petition for review.
. Because Hamitaj filed his asylum applica-don in 2003, the REAL ID Act, effective May *19511, 2005, does not apply to his claims. See 8 U.S.C. § 1158(b)(1)(B).
. The IJ also noted that Hamitaj omitted any mention of having received threatening phone calls in his initial affidavit, and that there was inconsistent information concerning when Hamitaj's father disappeared. A.R. 62-63.
. Hamitaj spends much of his brief arguing that his due process rights were violated. As the Government points out, Hamitaj did not raise a due process claim in his brief to the BIA. We therefore lack jurisdiction to consider whether Hamitaj's due process rights were violated. 8 U.S.C. § 1252(d)(1). Hamitaj did argue in his brief to Üte BIA that the IJ ignored much of his evidence. We agree with the BIA that the evidence Hamitaj points to does not compel reversal of the adverse credibility finding. We further note that Hamitaj made no separate argument regarding his CAT claim in his brief to the BIA, and we therefore lack jurisdiction to consider that claim as well. Id. In any event, we note that there is no evidence in the record supporting the notion that Hamitaj would be imprisoned in Albania, much less that he would be tortured in prison. See Petitioner’s Brief at 32. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479965/ | OPINION
PER CURIAM.
This is an appeal from the District Court’s dismissal of Karl E. White’s pro se civil rights complaint. We will affirm.
White initiated his lawsuit in March 2009 by filing an application to proceed in forma pauperis (IFP). The District Court denied the application citing White’s ability to pay the $850 filing fee. White then paid the fee and filed a complaint alleging false imprisonment against state prosecutors, judges, and pre-trial bail officers who denied him bail in a 2007 criminal case. According to White, he was arrested in April 2007 and held for 10 months in the George W. Hill Correctional Facility. White also named the Correctional Facility as a defendant, claiming that it falsely imprisoned him and that guards there performed unnecessary strip searches. Finally, White claimed that two judges and three agents from the Delaware County Domestic Relations Department seized his federal stimulus payment.
All of the defendants, except for the Correctional Facility, filed motions to dismiss. The District Court granted the motions and allowed White twenty days to file an amended complaint against the Correctional Facility. White failed to file an amended complaint. The Correctional Facility then moved to dismiss, citing White’s failure to serve his complaint in accordance with Fed.R.Civ.P. 4. The District Court *201granted the motion, dismissed the complaint, and provided White twenty days to amend and to effectuate proper service. Instead of amending, White filed a notice of appeal from the District Court’s order. White filed two other notices of appeal and he challenges ten of the District Court’s orders on appeal. The Clerk consolidated the appeals.
We have jurisdiction over the final orders of District Courts under 28 U.S.C. § 1291,1 We exercise plenary review over the District Court’s decision to grant defendants’ motions to dismiss. Alaska Elec. Pension Fund v. Pharmacia Corp., 554 F.3d 342, 346 (3d Cir.2009). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible when its factual content allows the court to draw a reasonable inference that a defendant is liable for the alleged misconduct. See Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). We review the District Court’s order dismissing a complaint for improper service for abuse of discretion. See Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1308 (3d Cir.1995). We review the denial of leave to proceed IFP for abuse of discretion. See Jones v. Zimmerman, 752 F.2d 76, 78 (3d Cir.1985).
First, we find that the District Court did not abuse its discretion in requiring White to pay the $350 filing fee. In his declaration in support of his IFP application, White stated that he earned $1,144 per month from his job. He also stated that he did not pay rent, that he paid $30 a week in child support payments, and that he received food stamps. Given White’s financial resources, the filing fee did not impermissibly “ ‘force [him] to abandon what may be a meritorious claim in order to spare himself complete destitution.’ ” Id. at 79 (quoting Adkins v. DuPont Co., 335 U.S. 331, 340, 69 S.Ct. 85, 93 L.Ed. 43 (1948)).2
Second, we agree with the District Court that White’s complaint failed to state a plausible claim for relief. White’s claims against judicial defendants for presiding over his civil and criminal cases are barred by absolute judicial immunity. See Stump v. Sparkman, 435 U.S. 349, 362, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978) (listing requirements for application of judicial immunity). Moreover, the prosecutorial defendants are also immune from civil suits for initiating and presenting a criminal case against White. Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993); see also Ernst v. Child and Youth Servs. of Chester County, 108 F.3d 486, 502 (3d Cir.1997) (noting that immunity applies even if the prosecutor acted in bad faith).
*202We also agree that the District Court properly dismissed White’s claims against the bail agency defendants. White’s only allegation against the bail agency defendants was that they denied him bail. In Pennsylvania, however, only a court may deny a defendant bail. See Commomvealth v. Dixon, 589 Pa. 28, 907 A.2d 468, 477 n. 12 (2006) (“Article I, Section 14 of the Pennsylvania Constitution permits courts to deny bail when ‘no condition or combination other than imprisonment will reasonably assure the safety of any person in the community.’ ”) White has not alleged a plausible claim that nonjudicial actors somehow denied him bail. Therefore, White did not state a claim on which relief could be granted.
Similarly, White did not state a viable claim against the defendants who work for the Delaware County Domestic Relations Department. White alleges that these defendants were “the motivating force” behind two judges who seized White’s federal stimulus payment. The stimulus payment, however, was seized pursuant to a state court child support order. The individual defendants who were carrying out the court’s order are immune from civil suit. See Gallas v. Sup. Ct. of Pa., 211 F.3d 760, 772-73 (3d Cir.2000). Given the futility of attempting to sue defendants who are immune from suit, we also hold that the District Court did not abuse its discretion in denying White’s attempts to amend his complaint against the non-Correctional Facility defendants. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (District Court may, at its discretion, refuse to grant leave to amend where amendment would be futile).
The District Court also did not abuse its discretion in dismissing the claims against the Correctional Facility, owned by local government, for improper service. Federal Rule of Civil Procedure 4(j)(2) requires that a local government be served “by delivering a copy of the summons and of the complaint to its chief executive officer” or by a process permitted under Pennsylvania law. Under Pennsylvania law, service could be effectuated by handing a copy to (1) an agent duly authorized, or (2) the person in charge at the office of the defendant, or (3) the may- or, or the president, chairman, secretary or clerk of the tax levying body thereof, or in some cases, the chairman or clerk of the board of county commissioners. See Pa. R. Civ. P. 422(b). White sent a copy of the complaint to the Correctional Facility via certified mail. This method does not comply with either provisions of Rule 4. Further, White has not shown good cause for his failure to serve the Correctional Facility. See Petrucelli, 46 F.3d at 1305. The District Court, therefore, did not abuse its discretion in dismissing the complaint for improper service. Inasmuch as White did not properly serve the Correctional Facility, the District Court also properly denied White’s motion for default judgment. See Gold Kist Inc. v. Laurinburg Oil Co., 756 F.2d 14, 19 (3d Cir.1985) (“A default judgment entered when there has been no proper service of complaint is, a fortiori, void, and should be set aside.”)
For the foregoing reasons, we will affirm the District Court’s order dismissing White’s civil suit.3
. White's first notice of appeal, docketed as C.A. No. 09-3412, was from the District Court’s August 4 order granting the first motion to dismiss. At that time, the order was not appealable inasmuch as White had outstanding claims pending against the Correctional Facility. The District Court has since dismissed White's claims against all parties. The August 4 order is therefore now final and appealable. See Cape May Greene, Inc. v. Warren, 698 F.2d 179, 185 (3d Cir.1983) (considering a premature appeal that is followed by a final order to be an appeal from the final order). Further, White filed a notice of appeal after the District Court's final order, triggering the review of all previous orders.
. White also filed a notice of appeal from the District Court’s decision to grant him IFP on appeal. Inasmuch as he was not aggrieved by the District Court's order, he lacks standing to appeal it. See Watson v. City of Newark, 746 F.2d 1008, 1010 (3d Cir.1984).
. We also agree with the District Court’s denial of White’s motion to disqualify. The record *203does not support the appearance of bias or prejudice on the part of the District Court Judge. Nor did White demonstrate that he met the requirements for a temporary injunction. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479858/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Johnny Lee Gore appeals the district court’s order denying his motion for a new *312trial filed under Rule 33 of the Federal Rules of Criminal Procedure, because the motion was untimely. We agree. Under Rule 33(b)(1), Gore had “3 years after the verdict or finding of guilty” to file his motion claiming he had newly discovered evidence. See Fed.R.Crim.P. 33(b)(1). The jury found Gore guilty on June 5, 2002. Because Gore did not file his Rule 33 motion until September 23, 2009, the motion was not timely. Accordingly, we affirm the district court’s denial of relief. 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/8479860/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cedric O’Neal Butler appeals the district court’s order denying his motion to compel the Government to file a Fed. R.Crim.P. 35(b) motion on his behalf. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Butler, No. 1:05-cr-01220-MBS-1 (D.S.C. Jan. 13, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479862/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Vernell Brown Randolph appeals the district court’s order denying relief on her third motion for reduction of sentence filed pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm *315for the reasons stated by the district court. United States v. Randolph, No. 4:04-cr-00024-JBF-TEM-1 (E.D.Va. Jan. 6, 2010). We deny Randolph’s motion for appointment of counsel. 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/8479864/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William G. Harden seeks to appeal the district court’s orders dismissing certain defendants and denying Harden’s motion to amend. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The orders Harden seeks to appeal are neither final orders nor appeal-able interlocutory or collateral orders. Accordingly, we dismiss the appeal for lack of jurisdiction. We deny Harden’s motion for appointment of counsel and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479866/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Richard D’Alessandro appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. D’Alessandro v. Montgomery County, No. 8:09-cv00190-PJM (D. Md. filed Jan. 20, 2009; entered Jan. 21, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479868/ | *341Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding-precedent in this circuit.
PER CURIAM:
David Wayne Smith, Jr., appeals the district court’s order denying his motion for specific performance and a sentence reduction under Fed. R. Crim. P. 35(b). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Smith, No. 7:07-cr-00070-jct-1, 2010 WL 299487 (W.D.Va. Jan. 20, 2010). We deny Smith’s motion for transcripts at Government expense. 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/8479871/ | *344Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bobby Hazel 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 affirm for the reasons stated by the district court. See Hazel v. Lappin, No. 2:09-cv-00070-REM, 2010 WL 56034 (N.D.W.Va. Jan. 6, 2010). We deny Hazel’s motion for a stay. 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/8479873/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Deborah Reynolds appeals the district court’s order entering judgment for Defendants in accordance with the jury’s verdict in Reynolds’ negligence action. We have reviewed the record and the issues Reynolds raises on appeal and find no grounds for appellate relief. Accordingly, we affirm the district court’s order. Reynolds v. Swift Transp. Co., Inc., No. 3:07-cv-00457 (S.D.W.Va. Sept. 2, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479878/ | ORDER
Relying on Amendment 711 to the sentencing guidelines, which retroactively lowered the base offense level for some drug *528crimes involving crack cocaine, Adam Williams moved under 18 U.S.C. § 3582(c)(2) for a reduced sentence. The district court denied his motion. We affirm.
In 2001 a jury found Williams guilty of conspn-ing to distribute 50 or more grams of crack, see 21 U.S.C. § 846, distributing 50 or more grams of crack, see id. at § 841(a)(1), and distributing 5 or more grams of crack, see id. His offenses were grouped together for sentencing under U.S.S.G. § 3D1.2(d), and the district court found that he was responsible for at least 1.5 kilograms of crack. Based on the guidelines then in effect, Williams’s offense level was 44 and his criminal-history category was I, yielding a guidelines range of life imprisonment. In considering the sentencing factors under 18 U.S.C. § 3553(a), the court observed that Williams had given false testimony to the court and grand jury, and that he had repainted a car to prevent the arrest and prosecution of three other men who had used it to commit a murder. Remarking that it would prefer to send him to “boot camp” but that the guidelines didn’t authorize it, the court sentenced Williams to the statutory maximum for each count: life sentences for counts one and two and 40 years’ imprisonment for count three, all to be served concurrently. We dismissed his appeal of his conviction and sentence as frivolous. United States v. Williams, 51 Fed.Appx. 589 (7th Cir.2002), cert. denied, 540 U.S. 871, 124 S.Ct. 198, 157 L.Ed.2d 130 (2003).
In 2004 Williams wrote to the district court, arguing that his sentence had violated his right to a jury trial under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. Neto Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The court construed the letter as a motion for collateral relief under 28 U.S.C. § 2255 and denied it, ruling that Williams had filed it more than a year after his conviction became final. See 28 U.S.C. § 2255(f). The court noted that Williams could not have prevailed on the merits because Blakely did not apply retroactively to cases on collateral review. Williams appealed, but we denied his request for a certificate of appeal-ability. Williams v. United States, No. 05-4705 (7th Cir. Mar. 6, 2006) (order).
In 2009 Williams moved the district court for a sentence reduction under § 3582(c)(2). He asserted that Amendment 711 entitled him to a 2-level reduction in his offense level, but urged the court to disregard the guidelines and, after a full resentencing, impose a sentence of 10 years or less. See U.S.S.G. supp. to app. C, amend. 711. He also contended that the district court violated Apprendi at his original sentencing because it “found the facts that supported the mandatory minimum sentence.”
The district court acknowledged that Williams was eligible for a 2-level reduction, yielding a revised offense level of 42 and a new guidelines range of 360 months to life. But after considering the § 3553(a) sentencing factors and the potential threat he posed to public safety, the court nonetheless determined that a life sentence was still appropriate. The court placed special emphasis on Williams’s “repeated acts of perjury identified at the original sentencing, large-scale drug dealing, possession of a firearm, and assistance as an accomplice after the fact in a murder.” Moreover, the court concluded that in any case it could not reduce Williams’s sentence below his new range, as he requested. See United States v. Cunningham, 554 F.3d 703, 708 (7th Cir.2009). The court also denied Williams’s request for a full resentencing and noted that his Apprendi argument was inappropriate for a § 3582(c)(2) motion.
On appeal Williams seizes on the district court’s statement at his original sentencing *529hearing that it would have preferred sending him to “boot camp” to argue that the court mistakenly believed, in evaluating his § 3582(c)(2) motion, that it was still required to impose a life sentence. He also relies on U.S.S.G. § 5A, cmt. n.2 — which states that, in using the sentencing table, an offense level over 43 should be treated as an offense level of 43 — to argue that his offense level should drop from 43 to 41, rather than from 44 to 42. According to Williams, an offense level of 41 and the resulting revised range of 324 to 405 months for his conspiracy offense would permit the court to eschew a life sentence and grant a reduction.
Resentencing under § 3582(c)(2) is discretionary; after considering the § 3553(a) factors, the district court may reduce a sentence if the reduction would be consistent with applicable policy statements in the guidelines. 18 U.S.C. § 3582(c)(2); United States v. Marion, 590 F.3d 475, 477 (7th Cir.2009). U.S.S.G. § 1B1.10 directs the court to consider both the § 3553(a) factors and the danger to the public when determining whether a reduction is warranted and the extent of any reduction. It also permits the court to consider the defendant’s post-sentencing conduct. U.S.S.G. § 1B1.10 cmt. n.l(B)(i)-(iii); United States v. Young, 555 F.3d 611, 614 (7th Cir.2009).
We cannot say that the district court abused its discretion in this case. Regardless of Williams’s assertion that the court believed at his original sentencing that it had no choice but to impose a life sentence, the court concluded during the § 3582(c)(2) proceeding that it need not sentence him to life because it found his revised range to be 360 months to life. The court then appropriately considered the § 3553(a) factors and the potential threat to public safety — citing Williams’s perjury, large-scale drug dealing, possession of a firearm, and assistance in a murder — before reasonably determining that Williams’s sentence did not warrant reduction. And because the court reasonably concluded that Williams was not entitled to any reduction, his contention that he should receive a sentence beloiu the revised range necessarily fails, even if Cunningham, 554 F.3d at 708, did not foreclose that argument, which it does.
Williams’s argument under U.S.S.G. § 5A, cmt. n.2, that his offense level should have been reduced from 43 to 41, instead of from 44 to 42, is also unavailing. That commentary merely explains how to use the sentencing table after an offense level is calculated — not hotu to calculate the offense level in the first place. Here, the court correctly started at 44 before making the 2-level reduction. See United States v. Caceda, 990 F.2d 707, 709-10 (2d Cir.1993) (holding that downward adjustments must be made from the total offense level, even if it exceeds 43, to avoid “perverse” results, such as giving a defendant with an offense level of 50 and a 2-level reduction a lighter sentence than a defendant with an offense level of 43); see also United States v. Gonzalez-Balderas, 105 F.3d 981, 983-84 (5th Cir.1997) (lowering offense level from 46 to 44 after amendment to guidelines).
Williams next insists that the district court should have made 2-level reductions to each of his two distribution offenses separately, yielding revised ranges of 97 to 121 months for the second count, and 50 to 60 months for the third. But his argument is misguided. The district court was required to group his offenses together under U.S.S.G. § 3D1.2(d), and all of his concurrent sentences were based on the resulting combined offense level — originally 44, now 42 — and range.
Finally, the district court properly refrained from considering Williams’s Apprendi argument. Section 3582(c)(2) per*530mits a court to modify a sentence when the sentence was “based on a sentencing range that has subsequently been lowered”; it does not authorize consideration of other sentencing issues — such as an Apprendi claim — that do not stem from a change in the guidelines. See United States v. Jackson, 573 F.3d 398, 399 (7th Cir.2009); United States v. Smith, 241 F.3d 546, 548 (7th Cir.2001). In any case, an Apprendi argument would be futile, because Williams did not receive sentences above the statutory maxima for his offenses. See United States v. Washington, 558 F.3d 716, 719-20 (7th Cir.2009) (holding that Apprendi applies to facts increasing penalty above federal statutory maximum, but not to facts establishing statutory minimum).
We AFFIRM the judgment of the distinct court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479880/ | ORDER
Dante Coleman pleaded guilty to possessing a firearm after a felony conviction, 18 U.S.C. § 922(g)(1), possessing crack cocaine with intent to distribute, 21 U.S.C. § 841(a)(1), and carrying a firearm in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1). After a successful appeal, Coleman was resentenced as a career offender to 198 months’ imprisonment, running concurrently with his state sentence, and eight years of supervised release. Coleman appeals, but his appointed counsel has moved to withdraw because they cannot identify any nonfrivolous argument to pursue on appeal. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Coleman declined our invitation to comment on his counsel’s submission. See Cir. R. 51(b). We confine our review to the two potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 974 (7th Cir.2002).
This is not our first encounter with this case. Coleman appealed his original sentence; we vacated his sentence on all counts and remanded for resentencing. See United States v. Coleman, 232 Fed.Appx. 594 (7th Cir.2007) (unpublished). This appeal raises two issues: (1) whether Coleman’s previous conviction for vehicular fleeing under Wis. Stat. § 346.04(3) constitutes a “crime of violence” under § 4B1.1 such that it would support the district court’s determination that he is a career offender; and (2) whether his sentence is reasonable.
Counsel is correct that Coleman may challenge his sentence based on the Supreme Court’s decision in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). Coleman was sentenced as a career offender on April 9, 2008; the Supreme Court decided Begay on April 16, 2008. Since that time, we have devoted considerable attention to how Begay is to be applied. See, e.g., United States v. Woods, 576 F.3d 400 (7th Cir.2009); United States v. Hart, 578 F.3d 674 (7th Cir.2009); United States v. Hampton, 585 F.3d 1033 (7th Cir.2009); United States v. Clinton, 591 F.3d 968 (7th Cir.2010); United States v. Dismuke, 593 F.3d 582 (7th Cir.2010). We have held this case in order to have the benefit of those decisions.
While it may not have been clear at the outset, it is now settled in this circuit that a properly divisible part of the Wisconsin crime of vehicular fleeing qualifies as a “crime of violence” under U.S.S.G. § 4B1.1. Coleman’s offense was a violation of Wis. Stat. § 346.04(3), which provides: “No operator of a vehicle, after having received a visual or audible signal from a traffic officer, or marked police vehicle, shall knowingly flee or attempt to elude any traffic officer by willful or wanton disregard of such signal so as to interfere with or endanger the operation of the police vehicle, or the traffic officer or other vehicles or pedestrians, nor shall the operator increase the speed of the operators vehicle or extinguish the lights of the vehicle in an attempt to elude or flee.” We addressed this statute in Dismuke, supra, 593 F.3d at 590-96. In that case, we noted that this provision of Wisconsin law was divisible: one category is fleeing or attempting to elude an officer “by willful or wanton disregard of [the officer’s] signal so as to interfere with or endanger the operation of the police vehicle, or the traffic officer or other vehicles or pedestrians” *532and the other involved “increasfing] the speed of the operator’s vehicle or extinguishing] the lights of the vehicle in an attempt to elude or flee.” Id. at 590. Relying on United States v. Spells, 537 F.3d 743 (7th Cir.2008), we held that the second offense was a “crime of violence” for the specific purpose of the career-offender enhancement. Id. at 594. See also United States v. Howze, 343 F.3d 919, 921-22 (7th Cir.2003) (finding, prior to Woods, that Wis. Stat. § 346.04(3) described a “crime of violence”); Welch v. United States, 604 F.3d 408 (7th Cir.2010) (taking same approach to comparable provision of Illinois law).
Coleman was convicted of the same offense as Dismuke — a violation of Wis. Stat. § 346.04(3). Under the modified categorical approach, see United States v. Woods, 576 F.3d 400 (7th Cir.2009), we may look at a limited range of additional material to determine which portion of a divisible statute the defendant violated. Here, Coleman is under an extra disadvantage because he did not argue in the district court that his fleeing from an officer in his vehicle was not a crime of violence. Our review would therefore be only for plain error. See United States v. Olano, 507 U.S. 725, 734-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). If he were not confined by the plain error standard, our evaluation of the potential issue on appeal might be different. As it is, however, we see nothing in the record that indicates that Coleman’s earlier conviction was merely for disregarding a signal from a traffic officer; instead, it appears to describe actual “fleeing” from the officer as that term applies to the second category of the Wisconsin statute. This is the divisible part of the statute that we characterized as a “crime of violence” in Dismuke. On this understanding, we agree with counsel that the district court properly determined that Coleman is a career offender under the Guidelines.
We also agree with counsel that any appeal in which Coleman tried to argue that the district court’s sentence of 198 months’ imprisonment was reasonable would be doomed. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). The sentence was 22 months below the recommended range, and there is nothing in the record to suggest that the sentence was unreasonably high.
Accordingly, we Grant the motion and Dismiss Coleman’s appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479882/ | ORDER
Freddie Batchelor, an African-American woman, sued her former employer, the United States Department of Housing and Urban Development (“HUD”), claiming sex and race discrimination and retaliation in violation of Title VII. See 42 U.S.C. §§ 2000e-16(a), 2000e-3(a). The district court granted HUD’s motion for summary judgment on the ground that Batchelor had filed her lawsuit past the expiration of the statute of limitations. Batchelor appeals, and we affirm the judgment.
The allegedly discriminatory acts giving rise to Batchelor’s claims date back to 2004, and she filed a charge with HUD’s Equal Employment Opportunity (“EEO”) *538division in March of that year. See 42 U.S.C. § 2000e-16; 29 C.F.R. § 1614.106. The agency issued a final decision in January 2006 concluding that the charge lacked merit, but Batchelor had since retired and moved and did not receive it. After retaining counsel, however, she finally obtained a copy in September 2007; she and her lawyer parted ways, and she filed this lawsuit pro se in March 2008.
HUD moved for summary judgment on untimeliness grounds because Batchelor had not filed her lawsuit within 90 days of receiving notice of final action by the agency. See 42 U.S.C. § 2000e-16(c). In response Batchelor asserted that the 90-day deadline should be tolled because HUD had engaged in “prolonged settlement negotiations” with her through December 2007. The district court concluded, however, that, even if Batchelor’s version of events were taken as true, she had not demonstrated that HUD induced her to allow the filing deadline to pass and there was thus no basis to toll the deadline.
We review de novo the district court’s grant of summary judgment. See Scruggs v. Garst Seed Co., 587 F.3d 832, 838 (7th Cir.2009). A federal employee who wishes to sue under Title VII must file her lawsuit within 90 days of receiving notice of final agency action on her claims. 42 U.S.C. § 2000e-16(c). Although Batchelor now tells us otherwise, it was undisputed at summary judgment that her former attorney obtained HUD’s EEO decision in August 2007 and that Batchelor personally received a copy the following month. Thus, even under the most generous reading of the timeline, Batchelor was required to bring her lawsuit at some point in December 2007.
On appeal Batchelor renews her argument that her late filing should have been excused because she was engaged in settlement discussions with HUD until December 2007. Relief from a filing deadline on account of the defendant’s actions, however, is generally permitted only when the defendant has tricked or otherwise induced the plaintiff into allowing the deadline to pass. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990); Threadgill v. Moore U.S.A., Inc., 269 F.3d 848, 850 (7th Cir.2001); Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450-51 (7th Cir.1991). For example, a defendant’s promise to settle may estop her from later raising a statute-of-limitations defense, see Leister v. Dovetail, Inc, 546 F.3d 875, 880 (7th Cir.2008); Bomba v. W.L. Belvidere, Inc, 579 F.2d 1067, 1071 (7th Cir.1978), but merely engaging in settlement talks will not, Doe v. Blue Cross & Blue Shield United of Wis., 112 F.3d 869, 875 (7th Cir.1997); Brighton Vill. Assocs. v. United States, 52 F.3d 1056, 1061 (Fed.Cir.1995); Raziano v. United States, 999 F.2d 1539, 1541-42 (11th Cir.1993).
The evidence at summary judgment fell far short of establishing that HUD had induced Batchelor to permit the filing deadline to escape her. Indeed, there was no evidence that HUD engaged in “settlement negotiations” with Batchelor at all. It was undisputed that Batchelor’s former attorney contacted HUD in August 2007 with a settlement offer of $175,000 but that the agency responded with a letter stating that “there was no pending matter to settle.” Batchelor submitted an affidavit (consisting only of hearsay) that her lawyer later spoke to two HUD employees about her case. The first employee, she said, told her attorney that the agency was “having difficulty in addressing” her claims because she had testified against HUD in an unrelated case; the second, she said, called her attorney in December 2007 to say that the agency would not discuss settlement at that time but might in the future. Although Batchelor may have held out hope that a settlement would eventually materialize, these minimal communica*539tions with HUD did not give her reason to let the 90-day filing deadline slip by.
Accordingly, we AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479884/ | ORDER
Derrelle Cole served as the getaway driver while his two armed accomplices robbed a bank in Greenfield, Wisconsin. The trio made off with a little over $900 but had not gotten far before they were caught. Cole pleaded guilty to armed bank robbery, 18 U.S.C. § 2113(a), (d), and brandishing a firearm during a crime of violence, id. § 924(c)(1)(A)(ii), and the district court sentenced him to a total of 196 months’ imprisonment. Cole appeals, but his appointed lawyers seek to withdraw because they have concluded that the appeal is frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Cole did not respond to our invitation to comment on counsel’s motion. See Cir. R. 51(b). We confine our review to the potential issues counsel identify in their facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Cole has told counsel that he does not want his guilty pleas vacated, so they properly refrain from considering the adequacy of the plea colloquy or the voluntariness of the pleas. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002).
Counsel identify just one potential issue for appeal: whether Cole could challenge the reasonableness of his overall prison sentence. Cole had two prior felony convictions for crimes of violence (armed robbery and conspiracy to commit armed robbery) and thus qualified as a career offender under U.S.S.G. § 4B1.1(a). His guidelines range for the new charges was 262 to 327 months, but the government recommended total imprisonment of 196 months (112 months for the armed robbery charge plus the mandatory minimum of 84 months for the firearm charge, see 18 U.S.C. § 924(c)(l)(A)(ii)) to reward Cole for substantial assistance. See U.S.S.G. § 5K1.1. Cole asked the district court to reduce his prison sentence even further to 140 months and to impose it concurrently with a state sentence he was then serving. The district court granted the latter request but declined the former and adopted the government’s recommendation of 196 months, a reduction of roughly 25% from the low end of the guidelines range.
We agree with counsel that it would be frivolous for Cole to challenge his prison sentence. In advocating for 140 months, Cole pointed to his family ties, his history of mental illness and drug abuse, his cooperation with the government, and the length of his codefendants’ sentences. The district court considered these factors but concluded that any mitigating value was outweighed by the nature of the offense and Cole’s extensive criminal history, including another armed robbery for which he had been released from prison just two months before participating in the bank robbery. According to the court, Cole had demonstrated that he has “no fear of incarceration” or “respect for the safety of other people,” and thus a sentence lower than 196 months would not adequately protect the public or reflect the seriousness of the offense. On appeal we would presume Cole’s below-guidelines sentence to be reasonable, see United States v. Wallace, 531 F.3d 504, 507 (7th Cir.2008), and, in light of the district court’s careful consideration of the sentencing factors under *54418 U.S.C. § 3553(a), Cole would be unable to rebut that presumption, see United States v. Noel, 581 F.3d 490, 500 (7th Cir.2009).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479886/ | ORDER
Charlie Tate Jr. obtained a default judgment on an Eighth Amendment claim against three Milwaukee County Jail employees who, he alleged, failed to attend to his medical needs while he was at the jail. The district court awarded Tate approximately $ 36,000 in damages. Tate appeals, and we affirm.
Tate’s civil-rights complaint alleged that he sustained harm from medical neglect arising out of two incidents at the jail. 42 U.S.C. § 1983. He alleged, first, that he injured his back and his hand when he slipped on urine and feces from an overflowing toilet in his cell and hit a concrete table. He also alleged that during a later confinement at the jail, his complaints of excruciating shoulder pain were ignored by three defendants, Dr. Troutman, Sgt. Hale, and Nurse John Riegert. Tate claimed that he had entered the jail with a broken right shoulder, the result of a car accident and a beating he suffered at the hands of police officers.
The district court construed Tate’s complaints as raising Eighth Amendment claims and granted Tate a default judgment after the defendants failed to answer the complaint. The court then held an evidentiary hearing to determine damages. Regarding the first incident, the court concluded that Tate failed to show that the defendants were personally involved. Although the court allowed Tate to file additional material to prove the defendants’ involvement, it denied recovery after finding that Tate’s supplemental filing — an un-sworn letter that Tate sent the court — did not constitute admissible evidence. As for the second incident, the court found that the three defendants were personally involved and that Tate had established a basis for compensatory damages for the pain and emotional distress he experienced over the course of a month due to the inadequate diagnosis and treatment of his shoulder injury. Based on its survey of other cases where plaintiffs were awarded damages for pain and suffering due to lack *552of adequate medical care, the court assessed $ 27,000 in compensatory damages and $ 9,000 ($ 3,000 from each defendant) in punitive damages. The court, however, rejected Tate’s request for lost earnings because his evidence was insufficient to determine his earnings.
On appeal Tate argues that the court should have awarded damages for the first incident in the jail because, as he states in his unsworn letter, Troutman, Hale, and Riegert were all in the infirmary after his fall and ignored his injuries. We will not reverse the district court’s damage award unless it was clearly erroneous. Graham, v. Satkoski, 51 F.3d 710, 713 (7th Cir.1995).
It was not erroneous for the court to deny recovery from the defendants for the first incident. Tate had to show that the defendants were personally responsible for the constitutional violation, meaning that they facilitated, approved, condoned, or ignored the violation. Knight v. Wiseman, 590 F.3d 458, 462-63 (7th Cir.2009); Grieveson v. Anderson, 538 F.3d 763, 775-76 (7th Cir.2008); Johnson v. Snyder, 444 F.3d 579, 583-84 (7th Cir.2006). Even if all the facts in the complaint were accepted as true, as required with a default judgment, Yang v. Hardin, 37 F.3d 282, 286 (7th Cir.1994), nothing in the complaint tied Hale, Troutman, or Riegert to any injury stemming from Tate’s fall in his jail cell, and Tate’s unsworn letter was “entitled to no weight as substantive evidence,” Dugan v. Smerwick Sewerage Co., 142 F.3d 398, 406 n. 4 (7th Cir.1998).
Tate also argues that the district court disregarded his evidence of lost earnings. But Tate’s argument is factually inaccurate. The court did not disregard his evidence; it found simply that the records he submitted were not complete and comprehensive enough to establish his earnings without undue speculation. See SNA Nut Co. v. The Häagen-Dazs Co., Inc., 302 F.3d 725, 733 (7th Cir.2002); BE & K Constr. Co. v. Will & Grundy Counties Bldg. Trades Council, 156 F.3d 756, 770 (7th Cir.1998).
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479888/ | ORDER
No one disputes that Carol Ratulowski has been disabled since February 1979, when she was in a car accident that caused her multiple injuries, including an injury to her spinal cord. Based on those injuries, she receives supplemental security income benefits. Now she also seeks disability insurance benefits and child’s insurance benefits, based on a miscarriage in 1975 that she says rendered her disabled. But an administrative law judge concluded that the miscarriage was not disabling and denied her claim. Because the ALJ’s decision is supported by substantial evidence, we affirm.
Ratulowski applied for disability benefits and child’s benefits (based on her father’s insurance) in 2006, after a field worker at her local social security office suggested that she might be able to get more money if she qualified for disability or child’s benefits. After her claim was initially denied, she requested a hearing, at which she appeared pro se. At the hearing, one issue that arose was whether she should have legal representation. The ALJ told her of her right to counsel, and he offered to postpone the hearing if she wanted more time to find counsel. She declined and proceeded without counsel.
Another issue that surfaced was the onset date of Ratulowski’s disability. The ALJ attempted to focus her attention on her medical problems between 1975 and 1978. He explained that to be eligible for disability benefits, she would have to show *554that she became disabled before the date she was last insured, in December 1978— two months before the car accident. See 20 C.F.R. § 404.131. For child’s benefits, she would have to show that she became disabled before she turned 22, in August 1976. See 42 U.S.C. § 402(d)(1)(B); 20 C.F.R. § 404.350(a). Ratulowski testified that she had a miscarriage in 1975 but her memory of that time was limited. When the ALJ pressed for more, she said that she spent time in the hospital after the miscarriage and became traumatized there after seeing the fetus in a glass jar. The ALJ stressed the need for her to produce records supporting her medical problems from 1975 through 1978, and gave her more time to locate any additional medical records. Ratulowski was able to find records documenting the miscarriage, the resulting surgical procedure, and a follow-up appointment; however, these documents taken together reflect that she recovered well.
The ALJ was not persuaded that the miscarriage rendered Ratulowski disabled and denied her claim. The Appeals Council denied her request for review, so she brought this suit. The district court upheld the denial of benefits, and though it noted that the ALJ did not say enough about Ratulowski’s right to counsel, it found the omission harmless because the ALJ adequately developed the record.
On appeal Ratulowski asserts that she in fact wanted an attorney at her hearing — an argument that we construe as a challenge to her waiver of counsel before the ALJ. A claimant has a statutory right to counsel at a disability hearing. See 42 U.S.C. § 406; Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir.2007). The claimant can validly waive that right as long as the ALJ fully explains it. Skinner, 478 F.3d at 841. But as the district court pointed out, the ALJ did not comport with this circuit’s requirements for establishing a valid waiver because he did not explain that any attorney’s fees are subject to the court’s approval, and that attorney’s fees are capped at 25% of the past-due benefits. Id. That information was set forth, though, in the Social Security Administration’s letter (in January 2007) notifying Ratulowski that she could request the hearing. In any event, an invalid waiver does not require remand if the ALJ adequately developed the record, id. at 841-42; Binion v. Shalala, 13 F.3d 243, 245-46 (7th Cir.1994), and we agree with the Commissioner that the ALJ adequately developed the record. The ALJ issued requests for medical records, explained to Ratulowski the importance of detailing any medical problems she had between 1976 and 1978, encouraged her to look at home for more records from that time period, extended her time to submit additional records, and provided her an addressed, stamped envelope in which to return the records.
Ratulowski also challenges the ALJ’s conclusion that she was not disabled as a result of her miscarriage. She reiterates that the miscarriage was ti'aumatic, and adds that she suffered flashbacks of seeing the fetus in the jar for a few months. Disability within the meaning of the Social Security Act, however, requires that Ratulowski be unable to work at all for more than a year, see 42 U.S.C. § 423(d)(1)(A), and this she has not shown. Nor do her medical records show that the miscarriage caused any lasting medical problems. We will uphold an ALJ’s decision if it is supported by substantial evidence, see Getch v. Astrue, 539 F.3d 473, 480 (7th Cir.2008), and here, the ALJ’s decision was consistent with the evidence in the record.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479889/ | MEMORANDUM ***
This case concerns disciplinary sanctions imposed against plaintiff Kevin Lucey for incidents occurring while he was enrolled as a student at the University of Nevada, Las Vegas (“UNLV’) during the fall 2006 semester.
We review de novo the district court’s dismissal for failure to state a claim of Lucey’s due process claim under 42 U.S.C. § 1983 arising out of the sanctions imposed at the hearing on December 4, 2006 (“December 4 Hearing”). Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir.2005). We review the district court’s denial of leave to Lucey to amend his complaint for abuse of discretion. Gardner v. Martino, 563 F.3d 981, 990 (9th Cir.2009).
On the facts alleged, Lucey’s right to procedural due process at the December 4 Hearing was satisfied because Lucey was subject to sanctions less than suspension or expulsion and received “some kind of notice and [was] afforded some kind of hearing.” Goss v. Lopez, 419 U.S. 565, 579, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). Therefore, the district court properly dismissed Lucey’s § 1983 procedural due process claim concerning the December 4 Hearing. Although Lucey faults the district court for denying leave to amend without reasons, the court explained that Lucey’s proposed amendment added nothing new when it denied Lucey’s Motion for Leave to Amend. We see no abuse of discretion. Further, the undisputed evidence developed in the record on motion for summary judgment shows that Lucey’s procedural and substantive due process rights were not violated by the procedures for, the conduct of, or the results of either the December 4 Hearing or the hearing on July 9, 2007 (“July 9 Hearing”). Cf. Hurn v. Ret. Fund Trust of Plumbing, Heating & Piping Indus. of S. Cal., 648 F.2d 1252, 1254-55 (9th Cir.1981) (analyzing whether an amendment would have been futile after determining that the district court erred in failing to state reasons for denying leave to amend).
In reviewing a district court’s grant of summary judgment de novo, we must determine, viewing the evidence in the light most favorable to the nonmoving party, whether genuine issues of material fact exist and whether the district court correctly applied the relevant substantive law. Villegas v. City of Gilroy, 484 F.3d 1136, 1139 (9th Cir.2007). Lucey’s right to procedural due process was not violated at the July 9 Hearing because he was provided notice of the charges against him through letters and meetings with UNLV staff and opportunities to explain his version of the incidents to both UNLV staff and the disciplinary committee. In addition, Lucey’s right to substantive due process was not violated by the sanctions imposed at the July 9 Hearing because such sanctions were rationally related to UNLVs interest in maintaining a safe educational environment. New Jersey v. T.L.O., 469 U.S. 325, 340, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985); see also LaVine v. Blaine Sch. Dist., 231 F.3d 981, 992 (9th Cir.2001).
Lucey argues that the district court erred in finding that UNLV did not breach a contract with Lucey by: (1) not serving Lucey with a copy of the formal hearing notice either by hand-delivery or registered or certified mail; (2) failing to include the allegations against Lucey in the formal hearing notice; (3) failing to timely charge Lucey; and (4) refusing Lucey the right to be represented by counsel at the
*611July 9 Hearing. Assuming without deciding that a contract existed, the evidence in the record shows that UNLV did not breach a contract in any manner asserted by Lucey.
The trial court did not err in granting summary judgment for the defendants on Lucey’s claims of negligent hiring, training, and supervision. The evidence of record shows that the charges against Lucey were timely and that Lucey was not improperly denied the assistance of counsel at the July 9 Hearing. Likewise there is no evidence in the record to support Lueey’s claim that defendants abused their power by bringing additional charges against him or, apart from speculation by Lucey’s counsel, that they retaliated by bringing charges against him after he filed a lawsuit. Rebecca Mills’s decision to afford Lucey a new hearing due to his claimed lack of notice, without more, is not evidence of an improper retaliatory motive. Cf. Coszalter v. City of Salem, 320 F.3d 968, 975 (9th Cir.2003).
We have considered the remainder of Lucey’s contentions and have found them to be without merit. Accordingly, summary judgment was properly granted for the defendants on each of Lucey’s claims.
JUDGMENT AFFIRMED.
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/8479892/ | MEMORANDUM **
In these consolidated petitions for review, Julio Eugenio Meneos Borrayo, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) orders dismissing his appeal from an immigration judge’s (“IJ”) order of removal and denying his subsequent motion to reopen based on ineffective assistance of counsel. Our jurisdiction *712is governed by 8 U.S.C. § 1252. We review for abuse of discretion the BIA’s denial of a motion to reopen and review de novo legal and constitutional claims, including claims of ineffective assistance of counsel. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). In 07-73166, we grant the petition for review and remand. In 08-70982, we grant in part and dismiss in part the petition for review and remand.
The agency did not have the benefit of our decision in Chaly-Garcia v. United States, 508 F.3d 1201 (9th Cir.2007), when it denied Meneos Borrayo’s application for special rule cancellation of removal. We therefore remand for the agency to consider Meneos Borrayo’s application in light of this intervening case.
The BIA abused its discretion in denying Meneos Borrayo’s motion to reopen by requiring strict compliance with the procedural requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). The ineffective assistance of his prior counsel was plain on the face of the record where prior counsel failed to either withdraw or pursue Meneos Borrayo’s pending asylum application. See Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir.2002).
The BIA failed to address Meneos Bor-rayo’s contentions, raised in his motion to reopen, that the IJ violated due process by failing to adjudicate his asylum application. We remand for the BIA consider this contention in the first instance. See Montes-Lopez v. Gonzales, 486 F.3d 1163, 1165 (9th Cir.2007).
We lack jurisdiction to review Meneos Borrayo’s remaining contentions because he failed to exhaust them before the agency. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).
In No. 07-73166: PETITION FOR REVIEW GRANTED; REMANDED. Each party shall bear its own costs in this petition for review.
In No. 08-70982: PETITION FOR REVIEW GRANTED in part; DISMISSED in part; REMANDED. Each party shall bear its own costs in this petition for review.
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/8479895/ | SUMMARY ORDER
John Faltings, pro se, appeals from the district court’s order dismissing his complaint for failure to state a claim upon which relief can be granted. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), a district court “shall dismiss the case at any time if the court determines that ... the action ... fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). This Court “review[s] de novo a district court’s ruling pursuant to 28 U.S.C. § 1915.” Polanco v. Hopkins, 510 F.3d 152, 155 (2d Cir.2007).
Having conducted a de novo review of the record, we affirm the district court’s judgment for substantially the same reasons stated by the district court in its thorough order of dismissal. See generally Harrington v. County of Suffolk, 607 F.3d 31 (2d Cir.2010). We have considered all of Faltings’s arguments on appeal and find them to be without merit. Accordingly, the judgment of the district court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479900/ | OPINION
AMBRO, Circuit Judge.
Anthony Vazquez pled guilty to one count of possession of a firearm by a convicted felon. His sentence included 198 months’ imprisonment. In this appeal, he brings two challenges to his sentence: 1) that the District Court delegated an impermissible level of authority to the Probation Office to control the alcohol and mental health treatment that Vazquez would receive during his supervised release; and 2) that the District Court’s decision to apply the statutory mandatory minimum to Vazquez as an armed career criminal violated the Fifth and Sixth Amendments. We reject both of these challenges, and therefore will affirm.
I.
In May 2007, the Philadelphia Police Department set up surveillance in a high-crime area of Philadelphia. Within 20 minutes of arriving at this location, the surveillance officers saw two drug dealers complete multiple drug deals. In each case, the officers saw the customers approach the dealers and briefly converse with them. Following this short conversa*170tion, one of the drug dealers would retrieve a concealed bag from a nearby wall. The dealer would then remove items from the bag and exchange them for money. Following each transaction, the surveillance officers provided backup officers with a description of the customer.
Vazquez was one of the customers that the surveillance officers observed during this period. After watching his drug transaction, the officers provided a description of Vazquez and his car to backup officers nearby. The backup officers then conducted an investigatory stop of Vazquez’s car. During the stop, the officers asked the driver and three passengers (Vazquez included) to get out of the car. Vazquez complied, but then began running. While running, he threw a jar to the ground. The officers then caught Vazquez and struggled to secure him. During the struggle, they noticed a gun sticking out of his pants. Eventually, the officers subdued Vazquez and recovered his loaded gun. The officers also seized the jar that he had discarded, which contained 469 milligrams of PCP. Following his arrest, Vazquez gave the officers an alias instead of his true name.
II.
In July 2007, a grand jury indicted Vazquez for one count of possession of a firearm by a convicted felon under 18 U.S.C. §§ 922(g)(1) and 924(e). The indictment alleged that he previously had been convicted of a “crime punishable by imprisonment for a term exceeding one year,” but did not allege that he had three prior convictions for “serious drug offenses.” In March 2008, Vazquez pled guilty.
In November 2008, the District Court held a sentencing hearing. During this hearing, the Government offered evidence that Vazquez had three prior felony drug convictions — each of which qualified as a “serious drug offense” under 18 U.S.C. § 924(e). Agreeing with the Government, the District Court concluded by a preponderance of the evidence that Vazquez had been convicted of these prior offenses and therefore qualified for a sentencing enhancement under the Armed Career Criminal Act (“ACCA”).
Vazquez admitted during the hearing that he had a drug addiction. Furthermore, his mother and a family friend testified that they were aware of Vazquez’s substance abuse problems. This tracked the Presentence Report (“PSR”), which noted that Vazquez admitted to “a poly substance abuse history involving alcohol, barbiturates, cocaine powder, marijuana, and PCP.” Vazquez’s substance abuse dated back to when he was 13 years old. In the PSR, Vazquez also reported “a mental health treatment history dating back to adolescence.” In particular, Vazquez admitted that he had been diagnosed with bipolar disorder while previously in custody. Furthermore, in 2003 he had been taken to a psychiatric unit because he was “overwhelmed with stress due to his finances, having young children, and life in general.”
In imposing Vazquez’s sentence, the District Court considered the 18 U.S.C. § 3553(a) factors. The Court stressed that this was Vazquez’s seventh criminal conviction — representing an unbroken criminal record dating back to when he was a 12-year-old. The Court also referenced Vazquez’s substance abuse problem, which had impeded both his educational and employment opportunities. In the end, the Court imposed a sentence of 198 months’ imprisonment, five years of supervised release, a $1,500 fine, and a $100 assessment. Vazquez filed a timely appeal.
*171III.
The District Court had jurisdiction under 18 U.S.C. § 3281. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
We ordinarily review the District Court’s sentence for abuse of discretion. See United States v. Martinez, 785 F.2d 111, 113 (3d Cir.1986). However, we review conditions of supervised release that were not objected to previously (such as those at issue in this appeal) for plain error. See United States v. Evans, 155 F.3d 245, 248 (3d Cir.1998). Finally, we exercise plenary review over a District Court’s legal conclusions. See United States v. Barbosa, 271 F.3d 438, 452 (3d Cir.2001).
IV.
In this appeal, Vazquez challenges his sentence on two grounds: 1) that the District Court delegated an impermissible level of authority to the Probation Office to control conditions of his supervised release; and 2) that the District Court’s decision to apply the sentencing enhancement under the ACCA violated the Fifth and Sixth Amendments. We consider each challenge in turn.
A. Vazquez’s Supervised Release Conditions
The challenged conditions of Vazquez’s supervised release read as follows:
The defendant shall refrain from use of alcohol and shall submit to testing to ensure compliance. It is further ordered that the defendant submit to evaluation and treatment as directed by the U.S. Probation Office. The defendant shall abide by the rules of any program and remain in treatment until satisfactorily discharged with the approval of the U.S. Probation Office. The Defendant shall participate in a mental health program for evaluation and/or treatment as directed by the Probation Office[,] and he shall remain in treatment until satisfactorily discharged with the approval of the U.S. Probation Office.
App. 6. Vazquez argues that these conditions run afoul of our holding in United States v. Pruden, 398 F.3d 241 (3d Cir. 2005). Although we concede that his challenges present close questions under Pru-den, we conclude that they fail under our recent decision in United States v. Heckman, 592 F.3d 400 (3d Cir.2010).
“[Probation officers must be allowed some discretion in dealing with their charges,” as “courts cannot be expected to map out every detail of a defendant’s supervised release.” Pruden, 398 F.3d at 250. Yet we must “balance[ ] the need for flexibility with the constitutional requirement that judges, not probation officers, set the terms of a defendant’s sentence.” Id. at 251. Therefore, we have endorsed the following test:
If [the defendant] is required to participate in a mental health intervention only if directed to do so by his probation officer, then this special condition constitutes an impermissible delegation of judicial authority to the probation officer. On the other hand, if the District Court was intending nothing more than to delegate to the probation officer the details with respect to the selection and schedule of the program, such delegation was proper.
Id. at 250-51 (quoting United States v. Peterson, 248 F.3d 79, 85 (2d Cir.2001)); see also Heckman, 592 F.3d at 410.
In Pruden, the District Court imposed a mental health condition similar (though not identical) to the mental health condition at issue in this case. The condition in Pru-den read as follows: “The defendant shall *172participate in a mental health treatment program at the discretion of the probation officer.” Pruden, 398 F.3d at 248. Unlike Vazquez’s case, however, none of the circumstances surrounding Pruden’s underlying offense or personal history suggested the need for mental health treatment. Indeed, the PSR “tend[ed] to show that Pru-den has a generally good mental state with no history of mental illness.” Id. at 249. Given this, we noted:
It is theoretically possible to read the sentence, “The defendant shall participate in a mental health treatment program at the discretion of the probation officer[]” to mean that the probation officer shall have discretion only to choose the particular program, but that participation in some such treatment program is mandatory. On this interpretation, the delegation would be permissible. The facts of this case, however — and, in particular, the lack of any specific findings that Pruden needs such mental health treatment — make it an implausible reading. At all events, the government conceded at oral argument that the District Court did not intend the probation officer’s discretion to extend only to the choice of particular programs.
Id. at 251 n. 5.
As we recently concluded in Heckman, “[t]here were special, fact-specific circumstances in Pruden that led us to reject” reading the mental health condition as providing the probation officer with “discretion only to choose the particular program,” but rendering “some such treatment program ... mandatory.” Heckman, 592 F.3d at 410. We explained:
The mental health condition [in Pruden ] was “not recommended in the [PSR] or requested by the government” ...; there was no evidence of, and no findings for, the need for mental health treatment, ...; and, to seal the matter, at oral argument “the [Government conceded ... that the District Court did not intend the probation officer’s discretion to extend only to the choice of particular programs.”
Id. (quoting Pruden, 398 F.3d at 245, 249, 251 n. 5) (emphasis in original). Given this reading of Pruden, we upheld Heckman’s mental health condition, noting that his “extensive history of exploiting children ... supports reading the condition as a permissible form of delegation.” Id. Furthermore, “the Government ... did not concede that the probation officer’s discretion ... extended past the choice and scheduling of particular mental health programs.” Id. With these key cases in mind, we consider in turn each of Vazquez’s challenged conditions.
1. The Mental Health Condition
The District Court ordered that Vazquez “shall participate in a mental health program for evaluation and/or treatment as directed by the Probation Office[,] and he shall remain in treatment until satisfactorily discharged with the approval of the U.S. Probation Office.” App. 6 (emphases added). Importantly, this condition is almost identical to the one we recently upheld in Heckman. 592 F.3d at 409-11.1 As in Heckman, we concede that the phrase “shall participate in a mental health program for evaluation and/or treatment,” taken in isolation, could be read “as allowing the Probation *173Office to order evaluation but not treatment — a potentially impermissible delegation of authority under Pruden.” Id. at 410 (emphasis in original). However, as in Heckman, the remainder of the condition “leads us to reject such a reading.” Id. Indeed, each condition further provides that the defendant “shall remain in treatment,” App. 6 (emphasis added), language which is “most naturally read as requiring mandatory treatment and thus limiting the Probation Office’s discretion.” Heckman, 592 F.3d at 410. As such, we conclude that the text of the condition is best read as providing that “[participation in the mental health treatment program itself is mandatory,” with “only the details ... set by the Probation Office.” Id. at 411.
As in Heckman (but not Pruden), this reading is bolstered by the record. Indeed, the PSR noted that Vazquez had a “mental health treatment history dating back to adolescence,” had been diagnosed with bipolar disorder in 2000, and was taken to a psychiatric unit in 2003 when, as already noted, “he became overwhelmed with stress due to his finances, having young children, and life in general.” For these reasons, we hold that the District Court’s imposition of the mental health condition was not plain error.
2. The Alcohol Treatment Condition
The District Court also directed that Vazquez refrain from alcohol use and submit to testing for alcohol consumption. In addition, the Court required him to “submit to evaluation and treatment as directed by the U.S. Probation Office.” App. 6. Moreover, Vazquez “shall abide by the rules of any program and remain in treatment until satisfactorily discharged with the approval of the U.S. Probation Office.” App. 6. (emphasis added). We conclude that this condition also satisfies the requirements of Pr-uden and Heckman.
First, just as there was support in the record for the mental health condition in Heckman, there is support for the alcohol treatment condition in this case. To repeat, the PSR concluded that Vazquez had a “poly substance abuse history involving alcohol, barbiturates, cocaine powder, marijuana, and PCP, dating back to age 13.” Furthermore, Vazquez attended an outpatient program for substance abuse in 1999. He was also admitted to an inpatient program that same year, but left against medical advice approximately two weeks later. While participating in the inpatient program, Vazquez “was described as showing no interest in participating.”
Furthermore, during Vazquez’s sentencing hearing, his mother and a family friend both confirmed his long history of substance abuse. See, e.g., App. 220-21 (noting that Vazquez “does have a drug problem,” and that no one ever “bother[s] to put him in a program and give him the help he needs”); App. 223 (acknowledging Vazquez’s addiction issues and explaining that he is “a sweetheart” and “very good person” when he is sober). Vazquez’s counsel also acknowledged that Vazquez “ha[d] a drug problem” and needed “treatment.” App. 216. Finally, Vazquez himself explained, “I’m an addict, I’m always going to be an addict.... I could be clean for ten years and one day pick up a drink and — and become an addict again ‘cause I’m always gonna be an addict.” App. 230. With regard to alcohol consumption in particular, prior to his arrest Vazquez “primarily drank alcoholic beverages on Fridays and Saturdays,” averaging between “a few beers to a six-pack of beer per night.”
Second, just as in Heckman, the alcohol treatment condition in this case delegates a permissible level of authority to the Probation Office. While delegating some administrative duties to the Probation Office, *174the condition “order[s] [that] the defendant submit to evaluation and treatment as directed by the U.S. Probation Office.” App. 6 (emphases added). In addition, the condition provides that Vazquez “shall abide by the rules of any [alcohol treatment] program and remain in treatment until satisfactorily discharged.” App. 6 (emphasis added). This language, coupled with Vazquez’s alcohol abuse history, leads us to conclude that the condition provides for mandatory alcohol treatment. Indeed, we read this condition as requiring Vazquez’s participation in alcohol treatment, while permissibly delegating to the Probation Office the task of identifying the specific program, monitoring Vazquez’s treatment, and officially signing off on Vazquez’s (possible) discharge after successful completion of the program. As such, we hold that the District Court did not plainly err in imposing the alcohol treatment condition.
B. The Armed Career Criminal Act
Finally, we turn to Vazquez’s constitutional challenge to the District Court’s decision to apply the sentencing enhancement under the ACCA without treating his prior felony convictions as elements of the offense and charging them in the indictment. In Vazquez’s view, this runs afoul of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In particular, he argues that, since his prior convictions increased his sentence under the ACCA, those convictions should have been charged in the indictment as elements of the offense and proved to a jury beyond a reasonable doubt. Given this, Vazquez concludes that the sentence imposed violates his constitutional rights under the Fifth and Sixth Amendments— notwithstanding controlling precedent.
In Almendarez-Torres v. United States, the Supreme Court held that the existence of prior convictions that increase the statutory maximum sentence may be determined by the District Court at sentencing and need not be included in the indictment or established as an element of the offense. 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). We have recently confirmed that Almendarez-Torres remains controlling authority in this Circuit, including in the context of the ACCA. See, e.g., United States v. Weatherly, 525 F.3d 265, 273-74 (3d Cir.2008) (rejecting a similar challenge to the ACCA); United States v. Coleman, 451 F.3d 154, 161 (3d Cir. 2006) (“[A]s the Supreme Court’s decision in Almendarez-Torres remains good law ..., Coleman’s argument regarding the Government’s failure to prove his prior convictions to the jury beyond a reasonable doubt is unpersuasive.”); United States v. Ordaz, 398 F.3d 236, 240 (3d Cir.2005) (“Ordaz’s argument that the fact of a prior conviction must be found by a jury was rejected by the Supreme Court in Almendarez-Torres.... ”). With this in mind, Vazquez concedes that he is simply preserving this issue for further review, should the Supreme Court reconsider Al-mendarez-Torres. See App. 197 (conceding that Almendarez-Torres is “still good law”); see also Appellant’s Br. 7 (“Counsel recognizes that Almendarez-Torres ... is to the contrary ..., but raises this issue to preserve it for further review and for adjudication should the Supreme Court overrule Almendarez-Torres.”). In this context, we reject Vazquez’s constitutional challenge to his sentencing enhancement under the ACCA.
For these reasons, we affirm the judgment of the District Court.
. In Heckman, the mental health condition read as follows: "The defendant shall participate in a mental health program for evaluation and/or treatment as directed by the United States Probation Office. The defendant shall remain in treatment until satisfactorily discharged and with the approval of the United States Probation Office....'' 592 F.3d at 409. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479902/ | OPINION
PER CURIAM.
Salaudin Makelara petitions for review of a Board of Immigration Appeals (“BIA”) decision dismissing his appeal of an Immigration Judge’s (“IJ”) decision denying his applications for relief from removal. We will deny the petition for review.
Makelara is a native and citizen of Macedonia. He arrived in the United States in January 2007. Shortly thereafter, a notice to appear was issued charging that Makelara was subject to removal because he entered the United States without having been admitted or paroled. Through counsel, Makelara conceded that he was removable as charged. He applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).
Makelara, who is Albanian, testified that he left Macedonia for political and economic reasons. He explained that he first had problems in Macedonia in 1994, when he was a member of the Democratic Party of Prosperity (“PPD”). Makelara attended a PPD rally to protest discrimination against Albanians, which was broken up by police. When Makelara returned home to the city of Dibar, he received a notice to report to the police. Makelara stated that he went to the police station but refused to identify his friends, who were depicted in photographs shown to him by police. The police beat him with a rubber club on the ribs and back, held him overnight, and told him not to participate in the party. Makelara received treatment from a private doctor and recovered in approximately two weeks.
Makelara further testified that the police arrested and beat him on account of his political activities in 1997, 2002, 2003, and 2006. He stated that the police arrested him in 1997 at a PPD demonstration for the legalization of the University of Teto-va. He was held for one night, beaten with a rubber club, and needed almost two weeks to recover. Makelara stated that he was arrested three times in 2002 because he participated in PPD meetings and rallies seeking to officially register the University of Tetova. He stated that he was detained for one night and beaten each time.
*205Makelara also testified that he was arrested in March 2008 while leaving the headquarters for the Democratic Union for Integration, which he joined in 2003. During this arrest, Makelara refused to answer questions and he was detained for 24 hours and beaten two or three times. Lastly, Makelara testified that the police arrested him, detained him for one night, and beat him in August and September of 2006 in Dibar. Makelara also stated that police stopped him sometimes two times a day because he was a member of a political party and Albanian. Makelara believes that he will be imprisoned and perhaps killed if he returns to Macedonia because he left the country and he has talked about the conditions there. Makelara stated that authorities questioned his wife on one occasion after he left Dibar.
Makelara also testified to the difficulties he had finding employment. He stated that he worked for a company as an agronomist from 1979 until August of 1994 or 1995, when the Macedonian government pressured his boss to lay him off. Make-lara stated he was unable to find another full-time job because he is Albanian and that he worked in part-time labor positions.
The IJ found Makelara not credible based on inconsistencies between his written statement and testimony and the fact that his testimony changed during the course of the hearing. The IJ explained that Makelara initially testified that the 1994 demonstration was in the town of Goseivar, but his statement provided that the demonstration was in Tetova. On cross-examination, Makelara stated that the demonstration in fact occurred in Teto-va. The IJ also noted inconsistencies between Makelara’s accounts of the questioning by police in 1994. The IJ explained that Makelara testified that the police had pictures of him with five friends and they wanted the names of his friends. Makera-la’s written statement, however, provides that the police showed him pictures of dozens of groups of Albanians, that the police had written his name and the names of five other demonstrators on a photograph, and that the police asked him the names of the rest of the demonstrators.
The IJ also found inconsistent evidence concerning Makelara’s job termination. The IJ explained that Makelara’s statement provides he was fired two weeks after he was released from detention in October 1994 due to pressure from the police. Makelara testified, however, that he worked until August 1995. Although Makelara later stated that he may have been fired in August 1994, the IJ noted that would have been before he was arrested. The IJ further noted that Makelara testified that he feared seeking medical treatment after his 1997 arrest, but he could not explain why he had such a fear given that he sought medical treatment after his 1994 arrest.
The IJ also stated that Makelara testified that he was arrested three times in 2002, but his statement was best interpreted as providing that he was arrested three times after the year 2002 — in March 2003, August 2006, and September 2006. When his attorney asked him about his 2002 arrests, Makelara was unable to provide any dates or details. The IJ concluded that Makelara did not establish that he was arrested in 2002. The IJ further stated that, even if Makelara’s statement could be construed as referring to three arrests in 2002, contrary to his testimony, he did not mention that he was beaten.
The IJ also noted that Makelara testified that he became a member of the Democratic Union for Integration in 2003, but when he was confronted with a membership card reflecting the year 2002, he stated he might have been a member in 2002. The IJ also found that Makelara did not provide reasonably available corroborating *206evidence or adequately explain the absence of such evidence.
Based on the adverse credibility finding and lack of corroborative material, the IJ concluded that Makelara failed to meet his burden of proof on his applications for relief from removal. The IJ recognized that the background materials reflected discrimination against Albanians and that Makelara may have better economic opportunities here, but she stated that relief could not be granted on that basis.
The BIA affirmed the IJ’s adverse credibility finding and dismissed Makelara’s appeal. The BIA stated that the IJ relied upon valid material inconsistencies and discrepancies for which Makelara had not provided sufficient explanations. The BIA noted the IJ’s reliance on the evidence regarding Makelara’s arrests in 2002, including his omission in his statement that he was beaten during these arrests and his inability to recall the dates of these arrests on direct examination. The BIA also noted inconsistencies in the evidence as to when Makelara’s job was terminated, the inadequate explanation as to why he feared seeking medical treatment in 1997, and his failure to submit sufficient supporting documentation in light of the problems with his credibility.
The BIA rejected Makelara’s argument that the inconsistencies cited by the IJ were minor, explaining that, under the REAL ID Act, the IJ was permitted to rely on inconsistencies that did not go to the heart of the claim. The BIA further found that the inconsistencies in this case were central to Makelara’s claim of mistreatment. The BIA concluded that Mak-elara had not satisfied his burden of proof for asylum, withholding of removal, or protection under the CAT. Finally, the BIA noted that Makelara’s wife and three children still live in Macedonia and have not suffered any harm. This petition for review followed.
We review the agency’s factual findings, including adverse credibility findings, for substantial evidence. Chen v. Att’y Gen., 484 F.Sd 212, 216 (3d Cir.2005). Under this standard of review, we will uphold the agency’s findings unless a reasonable adjudicator would be compelled to conclude to the contrary. Id. When the BIA substantially relies on an IJ’s adverse credibility finding, we have jurisdiction to review both the BIA’s and IJ’s opinions. Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.2004). Makelara’s applications for relief are governed by the REAL ID Act, under which a credibility determination may be based on an alien’s demeanor and responsiveness, the plausibility of the alien’s account, and inconsistencies in the evidence, regardless of whether the inconsistencies go to the heart of the alien’s claim. 8 U.S.C. § 1158(b)(l)(B)(iii).
Makelara first argues that his omission from his statement of the fact that he was beaten during his 2002 arrests is a trivial error and insufficient for the BIA to uphold an adverse credibility finding. The BIA’s reliance on this omission, however, was just one of several bases for upholding the adverse credibility finding. In addition, harm suffered by Makelara on account of his political opinion is central to his claim of persecution. The BIA also noted that the IJ did not find convincing Makelara’s explanation that he did not mention the beatings because it is assumed that a person is beaten when arrested. The IJ explained that Makelara had noted that he was beaten during his other arrests. Although Makelara further stated that his beatings in 2002 were less severe than those in other years, the BIA did not err in relying on this omission where, as discussed below, he was also unable to provide detailed testimony about his 2002 arrests.
Makelara also challenges the BIA’s reliance on the fact that he was unable to *207recall the dates of his three arrests in 2002 on direct examination, but that he was able to provide specific months on cross-examination. Makelara argues that there is no inconsistency and that his testimony is consistent with his written statement that he was arrested three times in 2002. In referring to Makelara’s inability to recall the dates of his arrests in 2002, the BIA cited pages eight to ten of the IJ’s opinion, which reflects that the IJ found Makelara evasive and unable to provide details about the 2002 arrests. The IJ ultimately concluded that Makelara was arrested three times after 2002, not in 2002. IJ Dec. at 18-19. The record reflects Makelara’s inability to provide detailed testimony about arrests in 2002 and the BIA did not err in relying on this testimony to support an adverse credibility determination.
Makelara also challenges the BIA’s reliance on his inability to explain why he feared seeking medical treatment in 1997 when he had sought such treatment in 1994. Makelara argues that he explained that he did not want to be questioned about the cause of his injuries like he was in 1994, that the BIA did not state why this explanation was implausible, and that the BIA did not state the significance of the implausibility. The record reflects that the IJ was probing the reasonableness of Makelara’s testimony that he did not to go to a doctor after his 1997 arrest because he was afraid. A.R. at 179-81. The IJ asked whether something had happened to him as a result of the doctor learning the cause of his injuries in 1994. Makelara’s reply was non-responsive and he was unable to explain why he did not want a doctor to know the cause of his injuries in 1997. We find no error in the BIA’s reliance on this line of questioning in assessing his credibility.1
Finally, Makelara argues that the BIA erred in affirming the denial of protection under the CAT based on the adverse credibility finding. Makelara is correct. See Zubeda v. Ashcroft, 333 F.3d 463, 476 (3d Cir.2003) (stating alien’s credibility for purposes of asylum and withholding of removal does not defeat the alien’s ability to meet the burden of proof under the CAT). However, unlike in Zubeda, Makelara has not pointed to any objective evidence suggesting that he would more likely than not be subjected to torture if removed to Macedonia. Makelara only points to parts of the record that might support an inference that he will experience ethnic discrimination in Macedonia. Thus, relief is not warranted.
Accordingly, we will deny the petition for review.
. Makelara also challenges the IJ’s reliance on inconsistencies between his testimony and written statement as to where the 1994 demonstration occurred and his accounts of questioning by police in 1994. These inconsistencies further support the adverse credibility finding. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479904/ | OPINION
BARRY, Circuit Judge.
Reginald Greene appeals from the sentence imposed by the District Court. We will affirm.1
*210Because we write solely for the parties, we will not set forth the facts of the case except as necessary to our decision.2 In April 2008, Greene pled guilty, without a plea agreement, to seven counts of wire fraud, in violation of 18 U.S.C. § 1343; one count of conspiring to engage in money laundering, in violation of 18 U.S.C. § 1956(h); and one count of money laundering, in violation of 18 U.S.C. § 1957(a). The charges stemmed from Greene’s scheme to defraud a mortgage company by altering wire transfer instructions to divert funds to himself and others.
At sentencing, the government urged the District Court to apply a two-level enhancement under U.S.S.G. § 3C1.1 for obstruction of justice, alleging that Greene instructed his former girlfriend to misrepresent the source of the diverted funds to the FBI and providing grand jury testimony and FBI reports to support its request. This enhancement had been originally recommended in Greene’s pre-sentence investigation report (“PSR”) but removed after he objected and the government failed to provide evidence substantiating the enhancement. Greene, in turn, argued that the Probation Officer improperly applied the 2008 Sentencing Guidelines (in effect at the time of sentencing) rather than the 2002 Guidelines (in effect at the time of the offense conduct), where the 2002 Guidelines provided for a lower base offense level. The Court adjourned the sentencing hearing to allow for supplemental briefing and subsequently held a second hearing at which it determined that it would apply the 2002 Guidelines, as well as the two-level obstruction of justice enhancement. It calculated Greene’s offense level at 28. With a criminal history category of VI, the applicable Guidelines range was 140-175 months imprisonment. Greene was sentenced to 172 months imprisonment, and timely appealed.
Greene argues, first, that the government arbitrarily and unreasonably refused to file a motion pursuant to U.S.S.G. § 5K1.1, which provides: “Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.” Section 5K1.1 “gives the Government a power, not a duty, to file a motion when a defendant has substantially assisted.” Wade v. United States, 504 U.S. 181, 185, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992). District courts have authority to review the1 government’s discretionary decision not to file a § 5K1.1 motion and may “grant a remedy if they find that the refusal was based on an unconstitutional motive” or when its “refusal to move was not rationally related to any legitimate Government end.” Id. at 185-86, 112 S.Ct. 1840; see also United States v. Abuhouran, 161 F.3d 206, 211-12 (3d Cir.1998). We have reviewed the record and conclude without further discussion, for reasons of which the parties are aware, that the government’s decision not to file a § 5K1.1 motion was not based on an unconstitutional motive and was clearly related to a legitimate government end. Greene’s argument to the contrary is without merit.
Greene argues, next, that the District Court improperly applied the obstruction of justice enhancement because the government’s request for it was untimely. See Fed.R.Crim.P. 32(f)(1) (requiring parties to make objections to a PSR within fourteen days of receipt). A court may, however, for good cause permit parties to *211make objections at any time before sentence is imposed. Fed.R.Crim.P. 32(i)(l)(D). We reject Greene’s argument for two reasons. First, he was not prejudiced by the timing of the government’s request. The issue was raised in the government’s sentencing memorandum, and Greene had ten days after the Court adjourned the first sentencing hearing to respond to the government’s enhancement argument at the second sentencing hearing. Second, Greene himself raised an untimely objection at sentencing that was ultimately sustained by the Court.
Finally, we reject Greene’s argument that the District Court abused its discretion by not holding an evidentiary hearing on the obstruction of justice enhancement. “[T]he Confrontation Clause does not apply in the sentencing context and does not prevent the introduction of hearsay testimony at a sentencing hearing.” United States v. Robinson, 482 F.3d 244, 246 (3d Cir.2007) (citations omitted). Hearsay testimony must have, however, “some minimal indicium of reliability beyond mere allegation.” Id. (internal quotation marks and citation omitted); see also U.S.S.G. § 6A1.3(a). The Court concluded that this standard was satisfied, and Greene has offered us no reason to find otherwise.3
We will affirm the judgment of sentence.4
. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
. We note that the Honorable Stewart Dalzell, who sits by designation on this panel, was the District Court Judge when, in 1999, Greene was convicted and sentenced in an unrelated matter. We do not believe that this presents a conflict, and Greene does not suggest that it does.
. The Court found that the facts presented by the government with respect to the obstruction of justice enhancement were reliable and essentially uncontested. Greene’s former girlfriend, Lisa Mitchell, had testified to these facts before the grand jury and apparently confirmed them during her own criminal proceeding before the same District Court Judge. The Court noted that Mitchell, under oath both before the grand jury and before the Court, stated unequivocally that Greene directed her to make false statements to the FBI.
. Because we will affirm Greene’s sentence, we need not reach the government’s argument as to whether the ex post facto clause applies to the Guidelines now that they are advisory only. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479906/ | OPINION
PER CURIAM.
Petitioner seeks review of an order of the Board of Immigration Appeals (“BIA”) denying her second motion to reopen. For the reasons that follow, we will deny in part and dismiss in part the petition for review.
Petitioner, Qiao Zhen Liu, is a native and citizen of China. She entered the country without authorization in or around June 1995 and was placed into removal proceedings. In response, she applied for asylum, withholding of removal, and protection under the Convention Against Torture based on her political opposition to China’s family planning policies. On August 8, 2001, the Immigration Judge (“IJ”) found her not to be credible, concluded that her application was frivolous, and denied all of her requests for relief. The IJ held that even assuming Liu was credible, she failed to establish past persecution or a well-founded fear of future persecution. On appeal to the BIA, the same attorney who represented Liu before the IJ, Ms. Wang, initially filed a brief on her behalf. However, Liu then retained new counsel while the appeal was pending, and her new counsel filed a second brief before the BIA which replaced the first. The BIA affirmed the decision of the IJ without opinion on September 13, 2002.
On December 12, 2002, Liu filed a motion to reconsider and reopen, seeking to address some of the issues the IJ found *221damaging to her credibility.1 The BIA denied the motion for reconsideration as untimely and denied the motion to reopen because the documents she sought to submit were not sufficient to support her renewed applications for relief.
Approximately six years later, on January 8, 2009, Liu, through new counsel, filed a motion titled “Motion to Reopen Asylum Based Removal Hearing Sua Sponte or In The Alternative Re-Issue Order Dismissing Appeal.” In it, she alleged that Ms. Wang provided ineffective assistance by failing to inform her of her right to file a petition for review before this Court from the BIA’s September 13, 2002 decision and that her right to due process was violated by this failure. In order to remedy this defect, she requested that the BIA reopen her proceedings or re-file its decision to allow her to timely appeal.
The BIA denied the motion for several reasons. First, it concluded that the motion was untimely and number barred. See 8 C.F.R. § 1003.2(c)(2) (permitting only one motion to reopen which must be filed within 90 days of entry of final administrative order of removal). Second, it found that Liu failed to meet the requirements set out in In re Lozada, 19 I. & N. Dec. 637 (BIA 1988), for raising a claim of ineffective assistance of counsel.2 In her motion, Liu stated that she believed that Ms. Wang suffered from a mental illness and that her bar membership was in “Disability Inactive Status.” Liu alleged that she was therefore unable to locate Ms. Wang and could not inform her of the allegations against her or serve her with a copy of any disciplinary complaint Liu might file. The Board found this explanation to be unreasonable, as Liu did not provide any evidence to show that she made a bona fide effort to locate Ms. Wang or demonstrate that she suffered from a disability or mental illness during the course of her representation.
Third, the BIA concluded that Liu was not entitled to equitable tolling as she failed to demonstrate that she exercised due diligence in pursuing her claim. See Mahmood v. Gonzales, 427 F.3d 248, 252 (3d Cir.2005) (holding that time to file motion to reopen is subject to equitable tolling and that ineffective assistance of counsel can provide basis for tolling if petitioner exercises diligence in pursuing claims). The BIA held that in waiting nearly six years before filing her second motion to reopen and failing to provide any explanation for that delay, Liu failed to act diligently and therefore was not entitled to equitable tolling. Finally, the Board noted that in 2001, Liu retained new counsel to represent her in her appeal to the BIA. Accordingly, Ms. Wang was not even the attorney of record at the time the ineffective assistance of counsel allegedly occurred.
For all of these reasons, the BIA held that the motion to reopen was time and number barred, that Liu was not entitled to equitable tolling, and that it would not exercise its discretion to grant her motion to reopen sua sponte. Liu timely filed the instant petition for review.
*222We have jurisdiction over this petition for review pursuant to 8 U.S.C. § 1252. We review the BIA’s denial of a motion to reopen for abuse of discretion. See Liu v. Attorney Gen., 555 F.3d 145, 148 (3d Cir. 2009). Under this standard, we will uphold the BIA’s decision unless it is “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002). We will affirm the BIA’s factual findings if they are supported by “ ‘reasonable, substantial, and probative evidence on the record considered as a whole.’ ” Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir.2006) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 480, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). We generally lack jurisdiction to review the BIA’s decision not to exercise its discretion to sua sponte consider an untimely motion to reopen. See Cruz v. Attorney Gen., 452 F.3d 240, 250 (3d Cir.2006).
Petitioner’s motion to reopen was clearly not filed within the requisite ninety-day period and the BIA therefore correctly determined that it was time barred. See 8 C.F.R. § 1003.2(c)(2). In her brief, Liu focuses on why, under the particular circumstances of this case, she should be excused from strict compliance with Lozada. However, she fails to address the BIA’s finding that she did not act diligently in pursuing her claim, nor does she acknowledge that Ms. Wang had been replaced by a different attorney during her appeal to the BIA. Because the BIA properly determined that Liu was not entitled to equitable tolling on the basis of ineffective assistance of counsel for these reasons, Liu’s motion was untimely and, therefore, the BIA acted well within its discretion in denying it.
Next, Liu argues that the BIA abused its discretion in declining to sua sponte grant her motion to reopen despite the exceptional circumstances of her case. As stated earlier, we lack jurisdiction to review this claim. See Cruz, 452 F.3d at 250.
Based on the foregoing, we will deny in part and dismiss in part the petition for review.
. This motion was filed pro se. Liu alleges that she sought assistance from a firm she believed was run by attorneys but which actually was not, and that they drafted the motion but filed it pro se on her behalf and without her knowledge.
. Lozada requires: (1) an affidavit from the petitioner detailing the actions taken or not taken by counsel; (2) proof that counsel was informed of the allegations and given an opportunity to respond; and (3) a complaint filed with disciplinary authorities or a reasonable explanation for the decision not to file a complaint. See 19 I. & N. Dec. at 639; see also Lu v. Ashcroft, 259 F.3d 127, 132-34 (3d Cir.2001). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479907/ | OPINION
PER CURIAM.
I.
Petitioner Fu Chen seeks review of the Board of Immigration Appeals’ (“BIA”) final order of removal. In its order, the BIA affirmed the Immigration Judge’s (“IJ”) decision to deny Chen’s application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We will deny the petition.
II.
Chen, a native and citizen of China, entered the United States in October 2006 and was subsequently charged with remov-ability pursuant to INA § 212(a)(7)(A)(i)(I). In turn, Chen applied for asylum, withholding of removal, and CAT protection, alleging that he experienced past persecution and fears future persecution in China because he is a practitioner of Falun Gong.
In July 2007, following an administrative hearing, the IJ denied Chen’s application for asylum, concluding that there were significant unexplained inconsistencies between his credible fear interview and his asylum application and hearing testimony. Specifically, at his credible fear interview, Chen told an asylum officer, via an interpreter, that he was arrested in 2006 (shortly before he fled the country), for posting fliers which contained information about Falun Gong. Chen further stated that he hung the fliers in exchange for money so that he could purchase medication for his mother, not because he was a supporter of Falun Gong. In contrast, Chen stated in his asylum application and testified before the IJ that he hung the fliers in 2006 because he supported Falun Gong, not as a means to make money. In addition, Chen testified at his merits hearing that he had been assaulted in 2003 for having publically stated that Falun Gong is a “good thing.” Chen did not disclose this incident during his credible fear interview despite having been asked by officials if he had ever been arrested in China.
Chen appealed the IJ’s ruling to the BIA and, in July 2009, the BIA denied the appeal, finding no error in the IJ’s adverse credibility ruling. Chen filed a timely petition for review in this Court.
*224III.
This Court has authority to review final orders of removal. See 8 U.S.C. § 1252(a). “[W]hen the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We review factual findings, including adverse credibility determinations, for substantial evidence. See Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir.2005). An adverse credibility finding must be upheld unless “any reasonable adjudicator would be compelled to conclude to the contrary.” Berishaj v. Ashcroft, 378 F.3d 314, 322 (3d Cir.2004) (quoting 8 U.S.C. § 1252(b)(4)(B)).
Because Chen filed his application for relief after the enactment of the REAL ID Act of 2005, the BIA’s credibility determinations are governed by the Act. See Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir.2007). Under the REAL ID Act, an IJ may base her credibility determination on observations of the applicant’s demeanor, the plausibility of the applicant’s story, and on the consistency of the applicant’s statements. See INA § 208(b)(1)(B)(iii); Gabuniya v. Att’y Gen., 463 F.3d 316, 322 n. 7 (3d Cir.2006).
IV.
Chen argues that the inconsistencies between his credible fear interview and his asylum application and testimony are minor, and therefore insufficient to uphold the IJ’s credibility assessment. (Pet. Br. at 17.) We have previously held that inconsistencies between an airport statement and an asylum seeker’s testimony before an IJ are not sufficient, standing alone, to support a BIA finding that a petitioner was not credible. See Fiadjoe v. Att’y Gen., 411 F.3d 135, 159 (3d Cir.2005).
In this case, however, the IJ did not rely on a statement taken at the airport, which Chen was not asked to provide, but instead relied on discrepancies between Chen’s later credible fear interview and statements that he made in support of his asylum application. The record reveals that the credible fear interview was a detailed question and answer session which occurred with a Mandarin interpreter present and took place several weeks after Chen arrived in the United States. We conclude that the particular concerns that we had in Fiadjoe about an IJ’s reliance on an airport statement are not present in this case. See id. (“[An airport] interview is likely to be hurried; language difficulties arise; the results may be inaccurately recorded, and an arriving alien who has suffered abuse in his home country may be reluctant to reveal full information in his or her first meeting with the government.”)
Furthermore, Chen failed to adequately explain the inconsistencies between his statements, and, contrary to his assertions in his brief, the inconsistencies are not minor.1 The basis for Chen’s asylum application is that he experienced past persecution and fears future persecution because he is a practitioner of Falun Gong. However, during his credible fear interview, Chen told officials that he left China because the police attributed Falun Gong *225to him for having hung fliers on the subject, but that the reason he hung the fliers was to make money. (A.R.283-88.) We agree with the BIA that such an inconsistency goes to the heart of Chen’s application for relief. Accordingly, we conclude that substantial evidence supports the IJ’s adverse credibility determination.
Because Chen did not meet his burden of proof as to his asylum claim, his claim for withholding of removal necessarily fails, as does his claim for protection under the CAT. See Yu v. Att’y Gen., 513 F.3d 346, 349 (3d Cir.2008). We will deny the petition for review.
. In any event, the REAL ID Act permits credibility determinations based on, inter alia, inconsistencies that do not go to the heart of the alien’s claim. See 8 U.S.C. § 1158(b)(l)(B)(iii); Chukwu v. Att’y Gen., 484 F.3d at 189. We have not applied the REAL ID Act standard in a precedential opinion. Here, because the inconsistencies identified by the IJ relate to the heart of Chen’s claim for relief, and would thus support an adverse credibility determination even under the pre-REAL ID Act standard, we need not consider whether 8 U.S.C. § 1158(b)(1)(B)(iii) is consistent with due process. See Wang v. Holder, 569 F.3d 531, 538 (5th Cir.2009) (canvassing the provision). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479872/ | *344Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bobby Hazel 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 affirm for the reasons stated by the district court. See Hazel v. Lappin, No. 2:09-cv-00070-REM, 2010 WL 56034 (N.D.W.Va. Jan. 6, 2010). We deny Hazel’s motion for a stay. 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/8479874/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Deborah Reynolds appeals the district court’s order entering judgment for Defendants in accordance with the jury’s verdict in Reynolds’ negligence action. We have reviewed the record and the issues Reynolds raises on appeal and find no grounds for appellate relief. Accordingly, we affirm the district court’s order. Reynolds v. Swift Transp. Co., Inc., No. 3:07-cv-00457 (S.D.W.Va. Sept. 2, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479876/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth Edward Barbour seeks to appeal the magistrate judge’s order directing the Respondent to answer his 28 U.S.C. § 2254 (2006) petition. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Barbour seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we deny what we construe as a motion to expedite a decision in this appeal and 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/8479879/ | ORDER
Dante Coleman pleaded guilty to possessing a firearm after a felony conviction, 18 U.S.C. § 922(g)(1), possessing crack cocaine with intent to distribute, 21 U.S.C. § 841(a)(1), and carrying a firearm in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1). After a successful appeal, Coleman was resentenced as a career offender to 198 months’ imprisonment, running concurrently with his state sentence, and eight years of supervised release. Coleman appeals, but his appointed counsel has moved to withdraw because they cannot identify any nonfrivolous argument to pursue on appeal. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Coleman declined our invitation to comment on his counsel’s submission. See Cir. R. 51(b). We confine our review to the two potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 974 (7th Cir.2002).
This is not our first encounter with this case. Coleman appealed his original sentence; we vacated his sentence on all counts and remanded for resentencing. See United States v. Coleman, 232 Fed.Appx. 594 (7th Cir.2007) (unpublished). This appeal raises two issues: (1) whether Coleman’s previous conviction for vehicular fleeing under Wis. Stat. § 346.04(3) constitutes a “crime of violence” under § 4B1.1 such that it would support the district court’s determination that he is a career offender; and (2) whether his sentence is reasonable.
Counsel is correct that Coleman may challenge his sentence based on the Supreme Court’s decision in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). Coleman was sentenced as a career offender on April 9, 2008; the Supreme Court decided Begay on April 16, 2008. Since that time, we have devoted considerable attention to how Begay is to be applied. See, e.g., United States v. Woods, 576 F.3d 400 (7th Cir.2009); United States v. Hart, 578 F.3d 674 (7th Cir.2009); United States v. Hampton, 585 F.3d 1033 (7th Cir.2009); United States v. Clinton, 591 F.3d 968 (7th Cir.2010); United States v. Dismuke, 593 F.3d 582 (7th Cir.2010). We have held this case in order to have the benefit of those decisions.
While it may not have been clear at the outset, it is now settled in this circuit that a properly divisible part of the Wisconsin crime of vehicular fleeing qualifies as a “crime of violence” under U.S.S.G. § 4B1.1. Coleman’s offense was a violation of Wis. Stat. § 346.04(3), which provides: “No operator of a vehicle, after having received a visual or audible signal from a traffic officer, or marked police vehicle, shall knowingly flee or attempt to elude any traffic officer by willful or wanton disregard of such signal so as to interfere with or endanger the operation of the police vehicle, or the traffic officer or other vehicles or pedestrians, nor shall the operator increase the speed of the operators vehicle or extinguish the lights of the vehicle in an attempt to elude or flee.” We addressed this statute in Dismuke, supra, 593 F.3d at 590-96. In that case, we noted that this provision of Wisconsin law was divisible: one category is fleeing or attempting to elude an officer “by willful or wanton disregard of [the officer’s] signal so as to interfere with or endanger the operation of the police vehicle, or the traffic officer or other vehicles or pedestrians” *532and the other involved “increasfing] the speed of the operator’s vehicle or extinguishing] the lights of the vehicle in an attempt to elude or flee.” Id. at 590. Relying on United States v. Spells, 537 F.3d 743 (7th Cir.2008), we held that the second offense was a “crime of violence” for the specific purpose of the career-offender enhancement. Id. at 594. See also United States v. Howze, 343 F.3d 919, 921-22 (7th Cir.2003) (finding, prior to Woods, that Wis. Stat. § 346.04(3) described a “crime of violence”); Welch v. United States, 604 F.3d 408 (7th Cir.2010) (taking same approach to comparable provision of Illinois law).
Coleman was convicted of the same offense as Dismuke — a violation of Wis. Stat. § 346.04(3). Under the modified categorical approach, see United States v. Woods, 576 F.3d 400 (7th Cir.2009), we may look at a limited range of additional material to determine which portion of a divisible statute the defendant violated. Here, Coleman is under an extra disadvantage because he did not argue in the district court that his fleeing from an officer in his vehicle was not a crime of violence. Our review would therefore be only for plain error. See United States v. Olano, 507 U.S. 725, 734-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). If he were not confined by the plain error standard, our evaluation of the potential issue on appeal might be different. As it is, however, we see nothing in the record that indicates that Coleman’s earlier conviction was merely for disregarding a signal from a traffic officer; instead, it appears to describe actual “fleeing” from the officer as that term applies to the second category of the Wisconsin statute. This is the divisible part of the statute that we characterized as a “crime of violence” in Dismuke. On this understanding, we agree with counsel that the district court properly determined that Coleman is a career offender under the Guidelines.
We also agree with counsel that any appeal in which Coleman tried to argue that the district court’s sentence of 198 months’ imprisonment was reasonable would be doomed. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). The sentence was 22 months below the recommended range, and there is nothing in the record to suggest that the sentence was unreasonably high.
Accordingly, we Grant the motion and Dismiss Coleman’s appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479881/ | ORDER
Freddie Batchelor, an African-American woman, sued her former employer, the United States Department of Housing and Urban Development (“HUD”), claiming sex and race discrimination and retaliation in violation of Title VII. See 42 U.S.C. §§ 2000e-16(a), 2000e-3(a). The district court granted HUD’s motion for summary judgment on the ground that Batchelor had filed her lawsuit past the expiration of the statute of limitations. Batchelor appeals, and we affirm the judgment.
The allegedly discriminatory acts giving rise to Batchelor’s claims date back to 2004, and she filed a charge with HUD’s Equal Employment Opportunity (“EEO”) *538division in March of that year. See 42 U.S.C. § 2000e-16; 29 C.F.R. § 1614.106. The agency issued a final decision in January 2006 concluding that the charge lacked merit, but Batchelor had since retired and moved and did not receive it. After retaining counsel, however, she finally obtained a copy in September 2007; she and her lawyer parted ways, and she filed this lawsuit pro se in March 2008.
HUD moved for summary judgment on untimeliness grounds because Batchelor had not filed her lawsuit within 90 days of receiving notice of final action by the agency. See 42 U.S.C. § 2000e-16(c). In response Batchelor asserted that the 90-day deadline should be tolled because HUD had engaged in “prolonged settlement negotiations” with her through December 2007. The district court concluded, however, that, even if Batchelor’s version of events were taken as true, she had not demonstrated that HUD induced her to allow the filing deadline to pass and there was thus no basis to toll the deadline.
We review de novo the district court’s grant of summary judgment. See Scruggs v. Garst Seed Co., 587 F.3d 832, 838 (7th Cir.2009). A federal employee who wishes to sue under Title VII must file her lawsuit within 90 days of receiving notice of final agency action on her claims. 42 U.S.C. § 2000e-16(c). Although Batchelor now tells us otherwise, it was undisputed at summary judgment that her former attorney obtained HUD’s EEO decision in August 2007 and that Batchelor personally received a copy the following month. Thus, even under the most generous reading of the timeline, Batchelor was required to bring her lawsuit at some point in December 2007.
On appeal Batchelor renews her argument that her late filing should have been excused because she was engaged in settlement discussions with HUD until December 2007. Relief from a filing deadline on account of the defendant’s actions, however, is generally permitted only when the defendant has tricked or otherwise induced the plaintiff into allowing the deadline to pass. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990); Threadgill v. Moore U.S.A., Inc., 269 F.3d 848, 850 (7th Cir.2001); Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450-51 (7th Cir.1991). For example, a defendant’s promise to settle may estop her from later raising a statute-of-limitations defense, see Leister v. Dovetail, Inc, 546 F.3d 875, 880 (7th Cir.2008); Bomba v. W.L. Belvidere, Inc, 579 F.2d 1067, 1071 (7th Cir.1978), but merely engaging in settlement talks will not, Doe v. Blue Cross & Blue Shield United of Wis., 112 F.3d 869, 875 (7th Cir.1997); Brighton Vill. Assocs. v. United States, 52 F.3d 1056, 1061 (Fed.Cir.1995); Raziano v. United States, 999 F.2d 1539, 1541-42 (11th Cir.1993).
The evidence at summary judgment fell far short of establishing that HUD had induced Batchelor to permit the filing deadline to escape her. Indeed, there was no evidence that HUD engaged in “settlement negotiations” with Batchelor at all. It was undisputed that Batchelor’s former attorney contacted HUD in August 2007 with a settlement offer of $175,000 but that the agency responded with a letter stating that “there was no pending matter to settle.” Batchelor submitted an affidavit (consisting only of hearsay) that her lawyer later spoke to two HUD employees about her case. The first employee, she said, told her attorney that the agency was “having difficulty in addressing” her claims because she had testified against HUD in an unrelated case; the second, she said, called her attorney in December 2007 to say that the agency would not discuss settlement at that time but might in the future. Although Batchelor may have held out hope that a settlement would eventually materialize, these minimal communica*539tions with HUD did not give her reason to let the 90-day filing deadline slip by.
Accordingly, we AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479883/ | ORDER
Derrelle Cole served as the getaway driver while his two armed accomplices robbed a bank in Greenfield, Wisconsin. The trio made off with a little over $900 but had not gotten far before they were caught. Cole pleaded guilty to armed bank robbery, 18 U.S.C. § 2113(a), (d), and brandishing a firearm during a crime of violence, id. § 924(c)(1)(A)(ii), and the district court sentenced him to a total of 196 months’ imprisonment. Cole appeals, but his appointed lawyers seek to withdraw because they have concluded that the appeal is frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Cole did not respond to our invitation to comment on counsel’s motion. See Cir. R. 51(b). We confine our review to the potential issues counsel identify in their facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Cole has told counsel that he does not want his guilty pleas vacated, so they properly refrain from considering the adequacy of the plea colloquy or the voluntariness of the pleas. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002).
Counsel identify just one potential issue for appeal: whether Cole could challenge the reasonableness of his overall prison sentence. Cole had two prior felony convictions for crimes of violence (armed robbery and conspiracy to commit armed robbery) and thus qualified as a career offender under U.S.S.G. § 4B1.1(a). His guidelines range for the new charges was 262 to 327 months, but the government recommended total imprisonment of 196 months (112 months for the armed robbery charge plus the mandatory minimum of 84 months for the firearm charge, see 18 U.S.C. § 924(c)(l)(A)(ii)) to reward Cole for substantial assistance. See U.S.S.G. § 5K1.1. Cole asked the district court to reduce his prison sentence even further to 140 months and to impose it concurrently with a state sentence he was then serving. The district court granted the latter request but declined the former and adopted the government’s recommendation of 196 months, a reduction of roughly 25% from the low end of the guidelines range.
We agree with counsel that it would be frivolous for Cole to challenge his prison sentence. In advocating for 140 months, Cole pointed to his family ties, his history of mental illness and drug abuse, his cooperation with the government, and the length of his codefendants’ sentences. The district court considered these factors but concluded that any mitigating value was outweighed by the nature of the offense and Cole’s extensive criminal history, including another armed robbery for which he had been released from prison just two months before participating in the bank robbery. According to the court, Cole had demonstrated that he has “no fear of incarceration” or “respect for the safety of other people,” and thus a sentence lower than 196 months would not adequately protect the public or reflect the seriousness of the offense. On appeal we would presume Cole’s below-guidelines sentence to be reasonable, see United States v. Wallace, 531 F.3d 504, 507 (7th Cir.2008), and, in light of the district court’s careful consideration of the sentencing factors under *54418 U.S.C. § 3553(a), Cole would be unable to rebut that presumption, see United States v. Noel, 581 F.3d 490, 500 (7th Cir.2009).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479887/ | ORDER
No one disputes that Carol Ratulowski has been disabled since February 1979, when she was in a car accident that caused her multiple injuries, including an injury to her spinal cord. Based on those injuries, she receives supplemental security income benefits. Now she also seeks disability insurance benefits and child’s insurance benefits, based on a miscarriage in 1975 that she says rendered her disabled. But an administrative law judge concluded that the miscarriage was not disabling and denied her claim. Because the ALJ’s decision is supported by substantial evidence, we affirm.
Ratulowski applied for disability benefits and child’s benefits (based on her father’s insurance) in 2006, after a field worker at her local social security office suggested that she might be able to get more money if she qualified for disability or child’s benefits. After her claim was initially denied, she requested a hearing, at which she appeared pro se. At the hearing, one issue that arose was whether she should have legal representation. The ALJ told her of her right to counsel, and he offered to postpone the hearing if she wanted more time to find counsel. She declined and proceeded without counsel.
Another issue that surfaced was the onset date of Ratulowski’s disability. The ALJ attempted to focus her attention on her medical problems between 1975 and 1978. He explained that to be eligible for disability benefits, she would have to show *554that she became disabled before the date she was last insured, in December 1978— two months before the car accident. See 20 C.F.R. § 404.131. For child’s benefits, she would have to show that she became disabled before she turned 22, in August 1976. See 42 U.S.C. § 402(d)(1)(B); 20 C.F.R. § 404.350(a). Ratulowski testified that she had a miscarriage in 1975 but her memory of that time was limited. When the ALJ pressed for more, she said that she spent time in the hospital after the miscarriage and became traumatized there after seeing the fetus in a glass jar. The ALJ stressed the need for her to produce records supporting her medical problems from 1975 through 1978, and gave her more time to locate any additional medical records. Ratulowski was able to find records documenting the miscarriage, the resulting surgical procedure, and a follow-up appointment; however, these documents taken together reflect that she recovered well.
The ALJ was not persuaded that the miscarriage rendered Ratulowski disabled and denied her claim. The Appeals Council denied her request for review, so she brought this suit. The district court upheld the denial of benefits, and though it noted that the ALJ did not say enough about Ratulowski’s right to counsel, it found the omission harmless because the ALJ adequately developed the record.
On appeal Ratulowski asserts that she in fact wanted an attorney at her hearing — an argument that we construe as a challenge to her waiver of counsel before the ALJ. A claimant has a statutory right to counsel at a disability hearing. See 42 U.S.C. § 406; Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir.2007). The claimant can validly waive that right as long as the ALJ fully explains it. Skinner, 478 F.3d at 841. But as the district court pointed out, the ALJ did not comport with this circuit’s requirements for establishing a valid waiver because he did not explain that any attorney’s fees are subject to the court’s approval, and that attorney’s fees are capped at 25% of the past-due benefits. Id. That information was set forth, though, in the Social Security Administration’s letter (in January 2007) notifying Ratulowski that she could request the hearing. In any event, an invalid waiver does not require remand if the ALJ adequately developed the record, id. at 841-42; Binion v. Shalala, 13 F.3d 243, 245-46 (7th Cir.1994), and we agree with the Commissioner that the ALJ adequately developed the record. The ALJ issued requests for medical records, explained to Ratulowski the importance of detailing any medical problems she had between 1976 and 1978, encouraged her to look at home for more records from that time period, extended her time to submit additional records, and provided her an addressed, stamped envelope in which to return the records.
Ratulowski also challenges the ALJ’s conclusion that she was not disabled as a result of her miscarriage. She reiterates that the miscarriage was ti'aumatic, and adds that she suffered flashbacks of seeing the fetus in the jar for a few months. Disability within the meaning of the Social Security Act, however, requires that Ratulowski be unable to work at all for more than a year, see 42 U.S.C. § 423(d)(1)(A), and this she has not shown. Nor do her medical records show that the miscarriage caused any lasting medical problems. We will uphold an ALJ’s decision if it is supported by substantial evidence, see Getch v. Astrue, 539 F.3d 473, 480 (7th Cir.2008), and here, the ALJ’s decision was consistent with the evidence in the record.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479890/ | MEMORANDUM ***
This case concerns disciplinary sanctions imposed against plaintiff Kevin Lucey for incidents occurring while he was enrolled as a student at the University of Nevada, Las Vegas (“UNLV’) during the fall 2006 semester.
We review de novo the district court’s dismissal for failure to state a claim of Lucey’s due process claim under 42 U.S.C. § 1983 arising out of the sanctions imposed at the hearing on December 4, 2006 (“December 4 Hearing”). Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir.2005). We review the district court’s denial of leave to Lucey to amend his complaint for abuse of discretion. Gardner v. Martino, 563 F.3d 981, 990 (9th Cir.2009).
On the facts alleged, Lucey’s right to procedural due process at the December 4 Hearing was satisfied because Lucey was subject to sanctions less than suspension or expulsion and received “some kind of notice and [was] afforded some kind of hearing.” Goss v. Lopez, 419 U.S. 565, 579, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). Therefore, the district court properly dismissed Lucey’s § 1983 procedural due process claim concerning the December 4 Hearing. Although Lucey faults the district court for denying leave to amend without reasons, the court explained that Lucey’s proposed amendment added nothing new when it denied Lucey’s Motion for Leave to Amend. We see no abuse of discretion. Further, the undisputed evidence developed in the record on motion for summary judgment shows that Lucey’s procedural and substantive due process rights were not violated by the procedures for, the conduct of, or the results of either the December 4 Hearing or the hearing on July 9, 2007 (“July 9 Hearing”). Cf. Hurn v. Ret. Fund Trust of Plumbing, Heating & Piping Indus. of S. Cal., 648 F.2d 1252, 1254-55 (9th Cir.1981) (analyzing whether an amendment would have been futile after determining that the district court erred in failing to state reasons for denying leave to amend).
In reviewing a district court’s grant of summary judgment de novo, we must determine, viewing the evidence in the light most favorable to the nonmoving party, whether genuine issues of material fact exist and whether the district court correctly applied the relevant substantive law. Villegas v. City of Gilroy, 484 F.3d 1136, 1139 (9th Cir.2007). Lucey’s right to procedural due process was not violated at the July 9 Hearing because he was provided notice of the charges against him through letters and meetings with UNLV staff and opportunities to explain his version of the incidents to both UNLV staff and the disciplinary committee. In addition, Lucey’s right to substantive due process was not violated by the sanctions imposed at the July 9 Hearing because such sanctions were rationally related to UNLVs interest in maintaining a safe educational environment. New Jersey v. T.L.O., 469 U.S. 325, 340, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985); see also LaVine v. Blaine Sch. Dist., 231 F.3d 981, 992 (9th Cir.2001).
Lucey argues that the district court erred in finding that UNLV did not breach a contract with Lucey by: (1) not serving Lucey with a copy of the formal hearing notice either by hand-delivery or registered or certified mail; (2) failing to include the allegations against Lucey in the formal hearing notice; (3) failing to timely charge Lucey; and (4) refusing Lucey the right to be represented by counsel at the
*611July 9 Hearing. Assuming without deciding that a contract existed, the evidence in the record shows that UNLV did not breach a contract in any manner asserted by Lucey.
The trial court did not err in granting summary judgment for the defendants on Lucey’s claims of negligent hiring, training, and supervision. The evidence of record shows that the charges against Lucey were timely and that Lucey was not improperly denied the assistance of counsel at the July 9 Hearing. Likewise there is no evidence in the record to support Lueey’s claim that defendants abused their power by bringing additional charges against him or, apart from speculation by Lucey’s counsel, that they retaliated by bringing charges against him after he filed a lawsuit. Rebecca Mills’s decision to afford Lucey a new hearing due to his claimed lack of notice, without more, is not evidence of an improper retaliatory motive. Cf. Coszalter v. City of Salem, 320 F.3d 968, 975 (9th Cir.2003).
We have considered the remainder of Lucey’s contentions and have found them to be without merit. Accordingly, summary judgment was properly granted for the defendants on each of Lucey’s claims.
JUDGMENT AFFIRMED.
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/8479891/ | MEMORANDUM **
In these consolidated petitions for review, Julio Eugenio Meneos Borrayo, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) orders dismissing his appeal from an immigration judge’s (“IJ”) order of removal and denying his subsequent motion to reopen based on ineffective assistance of counsel. Our jurisdiction *712is governed by 8 U.S.C. § 1252. We review for abuse of discretion the BIA’s denial of a motion to reopen and review de novo legal and constitutional claims, including claims of ineffective assistance of counsel. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). In 07-73166, we grant the petition for review and remand. In 08-70982, we grant in part and dismiss in part the petition for review and remand.
The agency did not have the benefit of our decision in Chaly-Garcia v. United States, 508 F.3d 1201 (9th Cir.2007), when it denied Meneos Borrayo’s application for special rule cancellation of removal. We therefore remand for the agency to consider Meneos Borrayo’s application in light of this intervening case.
The BIA abused its discretion in denying Meneos Borrayo’s motion to reopen by requiring strict compliance with the procedural requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). The ineffective assistance of his prior counsel was plain on the face of the record where prior counsel failed to either withdraw or pursue Meneos Borrayo’s pending asylum application. See Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir.2002).
The BIA failed to address Meneos Bor-rayo’s contentions, raised in his motion to reopen, that the IJ violated due process by failing to adjudicate his asylum application. We remand for the BIA consider this contention in the first instance. See Montes-Lopez v. Gonzales, 486 F.3d 1163, 1165 (9th Cir.2007).
We lack jurisdiction to review Meneos Borrayo’s remaining contentions because he failed to exhaust them before the agency. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).
In No. 07-73166: PETITION FOR REVIEW GRANTED; REMANDED. Each party shall bear its own costs in this petition for review.
In No. 08-70982: PETITION FOR REVIEW GRANTED in part; DISMISSED in part; REMANDED. Each party shall bear its own costs in this petition for review.
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/8479893/ | MEMORANDUM **
Edy Sumitra Rusli, a native and citizen of Indonesia, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), and deny in part and grant in part the petition for review.
The record does not compel the conclusion that Rush’s difficulties in finding an attorney established extraordinary circumstances excusing his untimely filed asylum application. See 8 C.F.R. § 1208.4(a)(5); Husyev v. Mukasey, 528 F.3d 1172, 1181—82 (9th Cir.2008). Accordingly, Rush’s asylum claim is denied.
Substantial evidence also supports the agency’s finding that the incidents in Rush’s childhood where he was ridiculed, robbed, and struck by a stone constituted harassment rather than persecution, see Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir.2003) (holding that unfulfilled threats by citizens based on ethnicity constitute harassment and not persecution), and that his experiences during the May 1998 riots and encounter on his motorcycle in June 2000 also did not amount to persecution, see Nagoulko v. INS, 333 F.3d 1012, 1016-18 (9th Cir.2003).
In analyzing Rush’s withholding of removal claim, the agency declined to apply the disfavored group analysis set forth in Sael v. Ashcroft, 386 F.3d 922, 927-29 (9th Cir.2004). Intervening case law holds the disfavored group analysis applies to withholding of removal. See Wakkary v. Holder, 558 F.3d 1049, 1062-65 (9th Cir.2009). Accordingly, we remand to the BIA to consider whether Rush is entitled to withholding of removal under Sael and Wakka-ry. See INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam). In addition, the BIA should consider Rush’s pattern or practice of persecution claim. See Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir.2005) (“the BIA [is] not free to ignore arguments raised by a petitioner.”).
Substantial evidence supports the agency’s denial of CAT relief because Rush failed to establish it is more likely than not he will be tortured in Indonesia. See Wakkary, 558 F.3d at 1067-68.
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479896/ | SUMMARY ORDER
John Faltings, pro se, appeals from the district court’s order dismissing his complaint for failure to state a claim upon which relief can be granted. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), a district court “shall dismiss the case at any time if the court determines that ... the action ... fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). This Court “review[s] de novo a district court’s ruling pursuant to 28 U.S.C. § 1915.” Polanco v. Hopkins, 510 F.3d 152, 155 (2d Cir.2007).
Having conducted a de novo review of the record, we affirm the district court’s judgment for substantially the same reasons stated by the district court in its thorough order of dismissal. See generally Harrington v. County of Suffolk, 607 F.3d 31 (2d Cir.2010). We have considered all of Faltings’s arguments on appeal and find them to be without merit. Accordingly, the judgment of the district court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479898/ | OPINION
PER CURIAM.
Purnell R. Nelson appeals from the order of the United States District Court for the Middle District of Pennsylvania dismissing his civil rights action filed pursuant to 42 U.S.C. § 1983. Nelson, an inmate of the Dauphin County Prison, named as defendants Kenneth A. Rapp, the Dauphin County Public Defender; the office of the Dauphin County Public Defender; and the Commonwealth of Pennsylvania. Nelson alleged that his constitutional rights were violated by the Public Defender when he failed to notify him that a Dauphin County warrant was issued for his arrest. Nelson explained that he was arrested in May 2009 for a parole violation and was placed in the Dauphin County Prison. While he was housed there, in June 2009, an arrest warrant was issued for an outstanding capias, but the Public Defender failed to notify him. Upon Nelson’s release in July 2009, he was arrested *128on the capias, was searched, and had a marijuana joint seized. He was then detained at the Dauphin County Prison. He noted that he filed a motion to dismiss based on an illegal search and seizure, lack of probable cause for arrest, and the arresting officer’s failure to act in accordance with the law and provide him with Miranda warnings. Nelson alleged that he suffered mental anguish and psychological damage as a result of the Public Defender’s malpractice and incompetence. Further, he asserted that the Public Defender acted outside the scope of his duties by failing to notify Nelson of his pending case before he was arrested on the warrant, and that the Public Defender’s unethical misconduct violated his constitutional rights under the First, Fourth, Eighth, and Fourteenth Amendments. As relief, Nelson sought $1 million in compensatory damages and the same amount in punitive damages.
Nelson was granted in forma pauperis status in District Court. The District Court dismissed the complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted. This appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Upon consideration of the record, we will affirm. As noted by the District Court, criminal defense attorneys, including public defenders, do not act “under color of state law” and are not liable under section 1983 when performing traditional functions as defense counsel. See Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981). Despite Nelson’s assertion that the Public Defender acted outside of the scope of his duties, his allegations concern functions that Nelson expected the Public Defender to perform as defense counsel. Nelson’s allegations against defendant Rapp fail to state a claim under section 1983. Further, we agree with the District Court’s conclusion that the complaint fails to state a claim against the office of the Public Defender and the Commonwealth of Pennsylvania. The complaint makes no allegations against these two defendants. To the extent that the office of the Public Defender was named as a defendant only in relation to Nelson’s allegations against Rapp, the claims must fail. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (“defendant in a civil rights action must have a personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior.”) We also agree with the District Court’s conclusion that no claim can be made against the Commonwealth of Pennsylvania, because it is not a “person” subject to suit under section 1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (“We hold that neither a State nor its officials acting in their official capacities are ‘persons’ under § 1983.”).
Accordingly, for essentially the same reasons as those set forth by the District Court in its memorandum, we will affirm. Nelson’s motion for appointment of counsel is denied. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479899/ | OPINION
AMBRO, Circuit Judge.
Anthony Vazquez pled guilty to one count of possession of a firearm by a convicted felon. His sentence included 198 months’ imprisonment. In this appeal, he brings two challenges to his sentence: 1) that the District Court delegated an impermissible level of authority to the Probation Office to control the alcohol and mental health treatment that Vazquez would receive during his supervised release; and 2) that the District Court’s decision to apply the statutory mandatory minimum to Vazquez as an armed career criminal violated the Fifth and Sixth Amendments. We reject both of these challenges, and therefore will affirm.
I.
In May 2007, the Philadelphia Police Department set up surveillance in a high-crime area of Philadelphia. Within 20 minutes of arriving at this location, the surveillance officers saw two drug dealers complete multiple drug deals. In each case, the officers saw the customers approach the dealers and briefly converse with them. Following this short conversa*170tion, one of the drug dealers would retrieve a concealed bag from a nearby wall. The dealer would then remove items from the bag and exchange them for money. Following each transaction, the surveillance officers provided backup officers with a description of the customer.
Vazquez was one of the customers that the surveillance officers observed during this period. After watching his drug transaction, the officers provided a description of Vazquez and his car to backup officers nearby. The backup officers then conducted an investigatory stop of Vazquez’s car. During the stop, the officers asked the driver and three passengers (Vazquez included) to get out of the car. Vazquez complied, but then began running. While running, he threw a jar to the ground. The officers then caught Vazquez and struggled to secure him. During the struggle, they noticed a gun sticking out of his pants. Eventually, the officers subdued Vazquez and recovered his loaded gun. The officers also seized the jar that he had discarded, which contained 469 milligrams of PCP. Following his arrest, Vazquez gave the officers an alias instead of his true name.
II.
In July 2007, a grand jury indicted Vazquez for one count of possession of a firearm by a convicted felon under 18 U.S.C. §§ 922(g)(1) and 924(e). The indictment alleged that he previously had been convicted of a “crime punishable by imprisonment for a term exceeding one year,” but did not allege that he had three prior convictions for “serious drug offenses.” In March 2008, Vazquez pled guilty.
In November 2008, the District Court held a sentencing hearing. During this hearing, the Government offered evidence that Vazquez had three prior felony drug convictions — each of which qualified as a “serious drug offense” under 18 U.S.C. § 924(e). Agreeing with the Government, the District Court concluded by a preponderance of the evidence that Vazquez had been convicted of these prior offenses and therefore qualified for a sentencing enhancement under the Armed Career Criminal Act (“ACCA”).
Vazquez admitted during the hearing that he had a drug addiction. Furthermore, his mother and a family friend testified that they were aware of Vazquez’s substance abuse problems. This tracked the Presentence Report (“PSR”), which noted that Vazquez admitted to “a poly substance abuse history involving alcohol, barbiturates, cocaine powder, marijuana, and PCP.” Vazquez’s substance abuse dated back to when he was 13 years old. In the PSR, Vazquez also reported “a mental health treatment history dating back to adolescence.” In particular, Vazquez admitted that he had been diagnosed with bipolar disorder while previously in custody. Furthermore, in 2003 he had been taken to a psychiatric unit because he was “overwhelmed with stress due to his finances, having young children, and life in general.”
In imposing Vazquez’s sentence, the District Court considered the 18 U.S.C. § 3553(a) factors. The Court stressed that this was Vazquez’s seventh criminal conviction — representing an unbroken criminal record dating back to when he was a 12-year-old. The Court also referenced Vazquez’s substance abuse problem, which had impeded both his educational and employment opportunities. In the end, the Court imposed a sentence of 198 months’ imprisonment, five years of supervised release, a $1,500 fine, and a $100 assessment. Vazquez filed a timely appeal.
*171III.
The District Court had jurisdiction under 18 U.S.C. § 3281. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
We ordinarily review the District Court’s sentence for abuse of discretion. See United States v. Martinez, 785 F.2d 111, 113 (3d Cir.1986). However, we review conditions of supervised release that were not objected to previously (such as those at issue in this appeal) for plain error. See United States v. Evans, 155 F.3d 245, 248 (3d Cir.1998). Finally, we exercise plenary review over a District Court’s legal conclusions. See United States v. Barbosa, 271 F.3d 438, 452 (3d Cir.2001).
IV.
In this appeal, Vazquez challenges his sentence on two grounds: 1) that the District Court delegated an impermissible level of authority to the Probation Office to control conditions of his supervised release; and 2) that the District Court’s decision to apply the sentencing enhancement under the ACCA violated the Fifth and Sixth Amendments. We consider each challenge in turn.
A. Vazquez’s Supervised Release Conditions
The challenged conditions of Vazquez’s supervised release read as follows:
The defendant shall refrain from use of alcohol and shall submit to testing to ensure compliance. It is further ordered that the defendant submit to evaluation and treatment as directed by the U.S. Probation Office. The defendant shall abide by the rules of any program and remain in treatment until satisfactorily discharged with the approval of the U.S. Probation Office. The Defendant shall participate in a mental health program for evaluation and/or treatment as directed by the Probation Office[,] and he shall remain in treatment until satisfactorily discharged with the approval of the U.S. Probation Office.
App. 6. Vazquez argues that these conditions run afoul of our holding in United States v. Pruden, 398 F.3d 241 (3d Cir. 2005). Although we concede that his challenges present close questions under Pru-den, we conclude that they fail under our recent decision in United States v. Heckman, 592 F.3d 400 (3d Cir.2010).
“[Probation officers must be allowed some discretion in dealing with their charges,” as “courts cannot be expected to map out every detail of a defendant’s supervised release.” Pruden, 398 F.3d at 250. Yet we must “balance[ ] the need for flexibility with the constitutional requirement that judges, not probation officers, set the terms of a defendant’s sentence.” Id. at 251. Therefore, we have endorsed the following test:
If [the defendant] is required to participate in a mental health intervention only if directed to do so by his probation officer, then this special condition constitutes an impermissible delegation of judicial authority to the probation officer. On the other hand, if the District Court was intending nothing more than to delegate to the probation officer the details with respect to the selection and schedule of the program, such delegation was proper.
Id. at 250-51 (quoting United States v. Peterson, 248 F.3d 79, 85 (2d Cir.2001)); see also Heckman, 592 F.3d at 410.
In Pruden, the District Court imposed a mental health condition similar (though not identical) to the mental health condition at issue in this case. The condition in Pru-den read as follows: “The defendant shall *172participate in a mental health treatment program at the discretion of the probation officer.” Pruden, 398 F.3d at 248. Unlike Vazquez’s case, however, none of the circumstances surrounding Pruden’s underlying offense or personal history suggested the need for mental health treatment. Indeed, the PSR “tend[ed] to show that Pru-den has a generally good mental state with no history of mental illness.” Id. at 249. Given this, we noted:
It is theoretically possible to read the sentence, “The defendant shall participate in a mental health treatment program at the discretion of the probation officer[]” to mean that the probation officer shall have discretion only to choose the particular program, but that participation in some such treatment program is mandatory. On this interpretation, the delegation would be permissible. The facts of this case, however — and, in particular, the lack of any specific findings that Pruden needs such mental health treatment — make it an implausible reading. At all events, the government conceded at oral argument that the District Court did not intend the probation officer’s discretion to extend only to the choice of particular programs.
Id. at 251 n. 5.
As we recently concluded in Heckman, “[t]here were special, fact-specific circumstances in Pruden that led us to reject” reading the mental health condition as providing the probation officer with “discretion only to choose the particular program,” but rendering “some such treatment program ... mandatory.” Heckman, 592 F.3d at 410. We explained:
The mental health condition [in Pruden ] was “not recommended in the [PSR] or requested by the government” ...; there was no evidence of, and no findings for, the need for mental health treatment, ...; and, to seal the matter, at oral argument “the [Government conceded ... that the District Court did not intend the probation officer’s discretion to extend only to the choice of particular programs.”
Id. (quoting Pruden, 398 F.3d at 245, 249, 251 n. 5) (emphasis in original). Given this reading of Pruden, we upheld Heckman’s mental health condition, noting that his “extensive history of exploiting children ... supports reading the condition as a permissible form of delegation.” Id. Furthermore, “the Government ... did not concede that the probation officer’s discretion ... extended past the choice and scheduling of particular mental health programs.” Id. With these key cases in mind, we consider in turn each of Vazquez’s challenged conditions.
1. The Mental Health Condition
The District Court ordered that Vazquez “shall participate in a mental health program for evaluation and/or treatment as directed by the Probation Office[,] and he shall remain in treatment until satisfactorily discharged with the approval of the U.S. Probation Office.” App. 6 (emphases added). Importantly, this condition is almost identical to the one we recently upheld in Heckman. 592 F.3d at 409-11.1 As in Heckman, we concede that the phrase “shall participate in a mental health program for evaluation and/or treatment,” taken in isolation, could be read “as allowing the Probation *173Office to order evaluation but not treatment — a potentially impermissible delegation of authority under Pruden.” Id. at 410 (emphasis in original). However, as in Heckman, the remainder of the condition “leads us to reject such a reading.” Id. Indeed, each condition further provides that the defendant “shall remain in treatment,” App. 6 (emphasis added), language which is “most naturally read as requiring mandatory treatment and thus limiting the Probation Office’s discretion.” Heckman, 592 F.3d at 410. As such, we conclude that the text of the condition is best read as providing that “[participation in the mental health treatment program itself is mandatory,” with “only the details ... set by the Probation Office.” Id. at 411.
As in Heckman (but not Pruden), this reading is bolstered by the record. Indeed, the PSR noted that Vazquez had a “mental health treatment history dating back to adolescence,” had been diagnosed with bipolar disorder in 2000, and was taken to a psychiatric unit in 2003 when, as already noted, “he became overwhelmed with stress due to his finances, having young children, and life in general.” For these reasons, we hold that the District Court’s imposition of the mental health condition was not plain error.
2. The Alcohol Treatment Condition
The District Court also directed that Vazquez refrain from alcohol use and submit to testing for alcohol consumption. In addition, the Court required him to “submit to evaluation and treatment as directed by the U.S. Probation Office.” App. 6. Moreover, Vazquez “shall abide by the rules of any program and remain in treatment until satisfactorily discharged with the approval of the U.S. Probation Office.” App. 6. (emphasis added). We conclude that this condition also satisfies the requirements of Pr-uden and Heckman.
First, just as there was support in the record for the mental health condition in Heckman, there is support for the alcohol treatment condition in this case. To repeat, the PSR concluded that Vazquez had a “poly substance abuse history involving alcohol, barbiturates, cocaine powder, marijuana, and PCP, dating back to age 13.” Furthermore, Vazquez attended an outpatient program for substance abuse in 1999. He was also admitted to an inpatient program that same year, but left against medical advice approximately two weeks later. While participating in the inpatient program, Vazquez “was described as showing no interest in participating.”
Furthermore, during Vazquez’s sentencing hearing, his mother and a family friend both confirmed his long history of substance abuse. See, e.g., App. 220-21 (noting that Vazquez “does have a drug problem,” and that no one ever “bother[s] to put him in a program and give him the help he needs”); App. 223 (acknowledging Vazquez’s addiction issues and explaining that he is “a sweetheart” and “very good person” when he is sober). Vazquez’s counsel also acknowledged that Vazquez “ha[d] a drug problem” and needed “treatment.” App. 216. Finally, Vazquez himself explained, “I’m an addict, I’m always going to be an addict.... I could be clean for ten years and one day pick up a drink and — and become an addict again ‘cause I’m always gonna be an addict.” App. 230. With regard to alcohol consumption in particular, prior to his arrest Vazquez “primarily drank alcoholic beverages on Fridays and Saturdays,” averaging between “a few beers to a six-pack of beer per night.”
Second, just as in Heckman, the alcohol treatment condition in this case delegates a permissible level of authority to the Probation Office. While delegating some administrative duties to the Probation Office, *174the condition “order[s] [that] the defendant submit to evaluation and treatment as directed by the U.S. Probation Office.” App. 6 (emphases added). In addition, the condition provides that Vazquez “shall abide by the rules of any [alcohol treatment] program and remain in treatment until satisfactorily discharged.” App. 6 (emphasis added). This language, coupled with Vazquez’s alcohol abuse history, leads us to conclude that the condition provides for mandatory alcohol treatment. Indeed, we read this condition as requiring Vazquez’s participation in alcohol treatment, while permissibly delegating to the Probation Office the task of identifying the specific program, monitoring Vazquez’s treatment, and officially signing off on Vazquez’s (possible) discharge after successful completion of the program. As such, we hold that the District Court did not plainly err in imposing the alcohol treatment condition.
B. The Armed Career Criminal Act
Finally, we turn to Vazquez’s constitutional challenge to the District Court’s decision to apply the sentencing enhancement under the ACCA without treating his prior felony convictions as elements of the offense and charging them in the indictment. In Vazquez’s view, this runs afoul of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In particular, he argues that, since his prior convictions increased his sentence under the ACCA, those convictions should have been charged in the indictment as elements of the offense and proved to a jury beyond a reasonable doubt. Given this, Vazquez concludes that the sentence imposed violates his constitutional rights under the Fifth and Sixth Amendments— notwithstanding controlling precedent.
In Almendarez-Torres v. United States, the Supreme Court held that the existence of prior convictions that increase the statutory maximum sentence may be determined by the District Court at sentencing and need not be included in the indictment or established as an element of the offense. 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). We have recently confirmed that Almendarez-Torres remains controlling authority in this Circuit, including in the context of the ACCA. See, e.g., United States v. Weatherly, 525 F.3d 265, 273-74 (3d Cir.2008) (rejecting a similar challenge to the ACCA); United States v. Coleman, 451 F.3d 154, 161 (3d Cir. 2006) (“[A]s the Supreme Court’s decision in Almendarez-Torres remains good law ..., Coleman’s argument regarding the Government’s failure to prove his prior convictions to the jury beyond a reasonable doubt is unpersuasive.”); United States v. Ordaz, 398 F.3d 236, 240 (3d Cir.2005) (“Ordaz’s argument that the fact of a prior conviction must be found by a jury was rejected by the Supreme Court in Almendarez-Torres.... ”). With this in mind, Vazquez concedes that he is simply preserving this issue for further review, should the Supreme Court reconsider Al-mendarez-Torres. See App. 197 (conceding that Almendarez-Torres is “still good law”); see also Appellant’s Br. 7 (“Counsel recognizes that Almendarez-Torres ... is to the contrary ..., but raises this issue to preserve it for further review and for adjudication should the Supreme Court overrule Almendarez-Torres.”). In this context, we reject Vazquez’s constitutional challenge to his sentencing enhancement under the ACCA.
For these reasons, we affirm the judgment of the District Court.
. In Heckman, the mental health condition read as follows: "The defendant shall participate in a mental health program for evaluation and/or treatment as directed by the United States Probation Office. The defendant shall remain in treatment until satisfactorily discharged and with the approval of the United States Probation Office....'' 592 F.3d at 409. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479901/ | OPINION
PER CURIAM.
Salaudin Makelara petitions for review of a Board of Immigration Appeals (“BIA”) decision dismissing his appeal of an Immigration Judge’s (“IJ”) decision denying his applications for relief from removal. We will deny the petition for review.
Makelara is a native and citizen of Macedonia. He arrived in the United States in January 2007. Shortly thereafter, a notice to appear was issued charging that Makelara was subject to removal because he entered the United States without having been admitted or paroled. Through counsel, Makelara conceded that he was removable as charged. He applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).
Makelara, who is Albanian, testified that he left Macedonia for political and economic reasons. He explained that he first had problems in Macedonia in 1994, when he was a member of the Democratic Party of Prosperity (“PPD”). Makelara attended a PPD rally to protest discrimination against Albanians, which was broken up by police. When Makelara returned home to the city of Dibar, he received a notice to report to the police. Makelara stated that he went to the police station but refused to identify his friends, who were depicted in photographs shown to him by police. The police beat him with a rubber club on the ribs and back, held him overnight, and told him not to participate in the party. Makelara received treatment from a private doctor and recovered in approximately two weeks.
Makelara further testified that the police arrested and beat him on account of his political activities in 1997, 2002, 2003, and 2006. He stated that the police arrested him in 1997 at a PPD demonstration for the legalization of the University of Teto-va. He was held for one night, beaten with a rubber club, and needed almost two weeks to recover. Makelara stated that he was arrested three times in 2002 because he participated in PPD meetings and rallies seeking to officially register the University of Tetova. He stated that he was detained for one night and beaten each time.
*205Makelara also testified that he was arrested in March 2008 while leaving the headquarters for the Democratic Union for Integration, which he joined in 2003. During this arrest, Makelara refused to answer questions and he was detained for 24 hours and beaten two or three times. Lastly, Makelara testified that the police arrested him, detained him for one night, and beat him in August and September of 2006 in Dibar. Makelara also stated that police stopped him sometimes two times a day because he was a member of a political party and Albanian. Makelara believes that he will be imprisoned and perhaps killed if he returns to Macedonia because he left the country and he has talked about the conditions there. Makelara stated that authorities questioned his wife on one occasion after he left Dibar.
Makelara also testified to the difficulties he had finding employment. He stated that he worked for a company as an agronomist from 1979 until August of 1994 or 1995, when the Macedonian government pressured his boss to lay him off. Make-lara stated he was unable to find another full-time job because he is Albanian and that he worked in part-time labor positions.
The IJ found Makelara not credible based on inconsistencies between his written statement and testimony and the fact that his testimony changed during the course of the hearing. The IJ explained that Makelara initially testified that the 1994 demonstration was in the town of Goseivar, but his statement provided that the demonstration was in Tetova. On cross-examination, Makelara stated that the demonstration in fact occurred in Teto-va. The IJ also noted inconsistencies between Makelara’s accounts of the questioning by police in 1994. The IJ explained that Makelara testified that the police had pictures of him with five friends and they wanted the names of his friends. Makera-la’s written statement, however, provides that the police showed him pictures of dozens of groups of Albanians, that the police had written his name and the names of five other demonstrators on a photograph, and that the police asked him the names of the rest of the demonstrators.
The IJ also found inconsistent evidence concerning Makelara’s job termination. The IJ explained that Makelara’s statement provides he was fired two weeks after he was released from detention in October 1994 due to pressure from the police. Makelara testified, however, that he worked until August 1995. Although Makelara later stated that he may have been fired in August 1994, the IJ noted that would have been before he was arrested. The IJ further noted that Makelara testified that he feared seeking medical treatment after his 1997 arrest, but he could not explain why he had such a fear given that he sought medical treatment after his 1994 arrest.
The IJ also stated that Makelara testified that he was arrested three times in 2002, but his statement was best interpreted as providing that he was arrested three times after the year 2002 — in March 2003, August 2006, and September 2006. When his attorney asked him about his 2002 arrests, Makelara was unable to provide any dates or details. The IJ concluded that Makelara did not establish that he was arrested in 2002. The IJ further stated that, even if Makelara’s statement could be construed as referring to three arrests in 2002, contrary to his testimony, he did not mention that he was beaten.
The IJ also noted that Makelara testified that he became a member of the Democratic Union for Integration in 2003, but when he was confronted with a membership card reflecting the year 2002, he stated he might have been a member in 2002. The IJ also found that Makelara did not provide reasonably available corroborating *206evidence or adequately explain the absence of such evidence.
Based on the adverse credibility finding and lack of corroborative material, the IJ concluded that Makelara failed to meet his burden of proof on his applications for relief from removal. The IJ recognized that the background materials reflected discrimination against Albanians and that Makelara may have better economic opportunities here, but she stated that relief could not be granted on that basis.
The BIA affirmed the IJ’s adverse credibility finding and dismissed Makelara’s appeal. The BIA stated that the IJ relied upon valid material inconsistencies and discrepancies for which Makelara had not provided sufficient explanations. The BIA noted the IJ’s reliance on the evidence regarding Makelara’s arrests in 2002, including his omission in his statement that he was beaten during these arrests and his inability to recall the dates of these arrests on direct examination. The BIA also noted inconsistencies in the evidence as to when Makelara’s job was terminated, the inadequate explanation as to why he feared seeking medical treatment in 1997, and his failure to submit sufficient supporting documentation in light of the problems with his credibility.
The BIA rejected Makelara’s argument that the inconsistencies cited by the IJ were minor, explaining that, under the REAL ID Act, the IJ was permitted to rely on inconsistencies that did not go to the heart of the claim. The BIA further found that the inconsistencies in this case were central to Makelara’s claim of mistreatment. The BIA concluded that Mak-elara had not satisfied his burden of proof for asylum, withholding of removal, or protection under the CAT. Finally, the BIA noted that Makelara’s wife and three children still live in Macedonia and have not suffered any harm. This petition for review followed.
We review the agency’s factual findings, including adverse credibility findings, for substantial evidence. Chen v. Att’y Gen., 484 F.Sd 212, 216 (3d Cir.2005). Under this standard of review, we will uphold the agency’s findings unless a reasonable adjudicator would be compelled to conclude to the contrary. Id. When the BIA substantially relies on an IJ’s adverse credibility finding, we have jurisdiction to review both the BIA’s and IJ’s opinions. Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.2004). Makelara’s applications for relief are governed by the REAL ID Act, under which a credibility determination may be based on an alien’s demeanor and responsiveness, the plausibility of the alien’s account, and inconsistencies in the evidence, regardless of whether the inconsistencies go to the heart of the alien’s claim. 8 U.S.C. § 1158(b)(l)(B)(iii).
Makelara first argues that his omission from his statement of the fact that he was beaten during his 2002 arrests is a trivial error and insufficient for the BIA to uphold an adverse credibility finding. The BIA’s reliance on this omission, however, was just one of several bases for upholding the adverse credibility finding. In addition, harm suffered by Makelara on account of his political opinion is central to his claim of persecution. The BIA also noted that the IJ did not find convincing Makelara’s explanation that he did not mention the beatings because it is assumed that a person is beaten when arrested. The IJ explained that Makelara had noted that he was beaten during his other arrests. Although Makelara further stated that his beatings in 2002 were less severe than those in other years, the BIA did not err in relying on this omission where, as discussed below, he was also unable to provide detailed testimony about his 2002 arrests.
Makelara also challenges the BIA’s reliance on the fact that he was unable to *207recall the dates of his three arrests in 2002 on direct examination, but that he was able to provide specific months on cross-examination. Makelara argues that there is no inconsistency and that his testimony is consistent with his written statement that he was arrested three times in 2002. In referring to Makelara’s inability to recall the dates of his arrests in 2002, the BIA cited pages eight to ten of the IJ’s opinion, which reflects that the IJ found Makelara evasive and unable to provide details about the 2002 arrests. The IJ ultimately concluded that Makelara was arrested three times after 2002, not in 2002. IJ Dec. at 18-19. The record reflects Makelara’s inability to provide detailed testimony about arrests in 2002 and the BIA did not err in relying on this testimony to support an adverse credibility determination.
Makelara also challenges the BIA’s reliance on his inability to explain why he feared seeking medical treatment in 1997 when he had sought such treatment in 1994. Makelara argues that he explained that he did not want to be questioned about the cause of his injuries like he was in 1994, that the BIA did not state why this explanation was implausible, and that the BIA did not state the significance of the implausibility. The record reflects that the IJ was probing the reasonableness of Makelara’s testimony that he did not to go to a doctor after his 1997 arrest because he was afraid. A.R. at 179-81. The IJ asked whether something had happened to him as a result of the doctor learning the cause of his injuries in 1994. Makelara’s reply was non-responsive and he was unable to explain why he did not want a doctor to know the cause of his injuries in 1997. We find no error in the BIA’s reliance on this line of questioning in assessing his credibility.1
Finally, Makelara argues that the BIA erred in affirming the denial of protection under the CAT based on the adverse credibility finding. Makelara is correct. See Zubeda v. Ashcroft, 333 F.3d 463, 476 (3d Cir.2003) (stating alien’s credibility for purposes of asylum and withholding of removal does not defeat the alien’s ability to meet the burden of proof under the CAT). However, unlike in Zubeda, Makelara has not pointed to any objective evidence suggesting that he would more likely than not be subjected to torture if removed to Macedonia. Makelara only points to parts of the record that might support an inference that he will experience ethnic discrimination in Macedonia. Thus, relief is not warranted.
Accordingly, we will deny the petition for review.
. Makelara also challenges the IJ’s reliance on inconsistencies between his testimony and written statement as to where the 1994 demonstration occurred and his accounts of questioning by police in 1994. These inconsistencies further support the adverse credibility finding. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479905/ | OPINION
PER CURIAM.
Petitioner seeks review of an order of the Board of Immigration Appeals (“BIA”) denying her second motion to reopen. For the reasons that follow, we will deny in part and dismiss in part the petition for review.
Petitioner, Qiao Zhen Liu, is a native and citizen of China. She entered the country without authorization in or around June 1995 and was placed into removal proceedings. In response, she applied for asylum, withholding of removal, and protection under the Convention Against Torture based on her political opposition to China’s family planning policies. On August 8, 2001, the Immigration Judge (“IJ”) found her not to be credible, concluded that her application was frivolous, and denied all of her requests for relief. The IJ held that even assuming Liu was credible, she failed to establish past persecution or a well-founded fear of future persecution. On appeal to the BIA, the same attorney who represented Liu before the IJ, Ms. Wang, initially filed a brief on her behalf. However, Liu then retained new counsel while the appeal was pending, and her new counsel filed a second brief before the BIA which replaced the first. The BIA affirmed the decision of the IJ without opinion on September 13, 2002.
On December 12, 2002, Liu filed a motion to reconsider and reopen, seeking to address some of the issues the IJ found *221damaging to her credibility.1 The BIA denied the motion for reconsideration as untimely and denied the motion to reopen because the documents she sought to submit were not sufficient to support her renewed applications for relief.
Approximately six years later, on January 8, 2009, Liu, through new counsel, filed a motion titled “Motion to Reopen Asylum Based Removal Hearing Sua Sponte or In The Alternative Re-Issue Order Dismissing Appeal.” In it, she alleged that Ms. Wang provided ineffective assistance by failing to inform her of her right to file a petition for review before this Court from the BIA’s September 13, 2002 decision and that her right to due process was violated by this failure. In order to remedy this defect, she requested that the BIA reopen her proceedings or re-file its decision to allow her to timely appeal.
The BIA denied the motion for several reasons. First, it concluded that the motion was untimely and number barred. See 8 C.F.R. § 1003.2(c)(2) (permitting only one motion to reopen which must be filed within 90 days of entry of final administrative order of removal). Second, it found that Liu failed to meet the requirements set out in In re Lozada, 19 I. & N. Dec. 637 (BIA 1988), for raising a claim of ineffective assistance of counsel.2 In her motion, Liu stated that she believed that Ms. Wang suffered from a mental illness and that her bar membership was in “Disability Inactive Status.” Liu alleged that she was therefore unable to locate Ms. Wang and could not inform her of the allegations against her or serve her with a copy of any disciplinary complaint Liu might file. The Board found this explanation to be unreasonable, as Liu did not provide any evidence to show that she made a bona fide effort to locate Ms. Wang or demonstrate that she suffered from a disability or mental illness during the course of her representation.
Third, the BIA concluded that Liu was not entitled to equitable tolling as she failed to demonstrate that she exercised due diligence in pursuing her claim. See Mahmood v. Gonzales, 427 F.3d 248, 252 (3d Cir.2005) (holding that time to file motion to reopen is subject to equitable tolling and that ineffective assistance of counsel can provide basis for tolling if petitioner exercises diligence in pursuing claims). The BIA held that in waiting nearly six years before filing her second motion to reopen and failing to provide any explanation for that delay, Liu failed to act diligently and therefore was not entitled to equitable tolling. Finally, the Board noted that in 2001, Liu retained new counsel to represent her in her appeal to the BIA. Accordingly, Ms. Wang was not even the attorney of record at the time the ineffective assistance of counsel allegedly occurred.
For all of these reasons, the BIA held that the motion to reopen was time and number barred, that Liu was not entitled to equitable tolling, and that it would not exercise its discretion to grant her motion to reopen sua sponte. Liu timely filed the instant petition for review.
*222We have jurisdiction over this petition for review pursuant to 8 U.S.C. § 1252. We review the BIA’s denial of a motion to reopen for abuse of discretion. See Liu v. Attorney Gen., 555 F.3d 145, 148 (3d Cir. 2009). Under this standard, we will uphold the BIA’s decision unless it is “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002). We will affirm the BIA’s factual findings if they are supported by “ ‘reasonable, substantial, and probative evidence on the record considered as a whole.’ ” Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir.2006) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 480, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). We generally lack jurisdiction to review the BIA’s decision not to exercise its discretion to sua sponte consider an untimely motion to reopen. See Cruz v. Attorney Gen., 452 F.3d 240, 250 (3d Cir.2006).
Petitioner’s motion to reopen was clearly not filed within the requisite ninety-day period and the BIA therefore correctly determined that it was time barred. See 8 C.F.R. § 1003.2(c)(2). In her brief, Liu focuses on why, under the particular circumstances of this case, she should be excused from strict compliance with Lozada. However, she fails to address the BIA’s finding that she did not act diligently in pursuing her claim, nor does she acknowledge that Ms. Wang had been replaced by a different attorney during her appeal to the BIA. Because the BIA properly determined that Liu was not entitled to equitable tolling on the basis of ineffective assistance of counsel for these reasons, Liu’s motion was untimely and, therefore, the BIA acted well within its discretion in denying it.
Next, Liu argues that the BIA abused its discretion in declining to sua sponte grant her motion to reopen despite the exceptional circumstances of her case. As stated earlier, we lack jurisdiction to review this claim. See Cruz, 452 F.3d at 250.
Based on the foregoing, we will deny in part and dismiss in part the petition for review.
. This motion was filed pro se. Liu alleges that she sought assistance from a firm she believed was run by attorneys but which actually was not, and that they drafted the motion but filed it pro se on her behalf and without her knowledge.
. Lozada requires: (1) an affidavit from the petitioner detailing the actions taken or not taken by counsel; (2) proof that counsel was informed of the allegations and given an opportunity to respond; and (3) a complaint filed with disciplinary authorities or a reasonable explanation for the decision not to file a complaint. See 19 I. & N. Dec. at 639; see also Lu v. Ashcroft, 259 F.3d 127, 132-34 (3d Cir.2001). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479908/ | OPINION OF THE COURT
TASHIMA, Circuit Judge.
Appellant Hiep Tran appeals the mandatory-minimum 10-year sentence he received following his conviction for conspiracy to manufacture 1,000 or more marijuana plants. We will affirm.1
I.
Tran’s conviction and sentence resulted from a marijuana growing operation he ran in Birdsboro, Pennsylvania, in 2006 and 2007. Between late 2006 and early 2007, the Drug Enforcement Administration (“DEA”) learned of the operation and placed Tran under surveillance. On June 25, 2007, DEA agents raided Tran’s growing facility. Inside they discovered 888 live marijuana plants, as well as an additional 66 cuttings that had not yet taken root.
Tran was charged in a five-count indictment and, after a bench trial, was convicted of three counts of manufacturing and distributing marijuana. Only the most serious of these convictions is at issue in this appeal: Conspiracy to manufacture 1,000 or more marijuana plants, which carries a 10-year mandatory minimum sentence. 21 U.S.C. §§ 841(b)(1)(A), 846.
Because the DEA raid recovered only 888 live plants and 66 cuttings, the government relied on evidence of Tran’s past marijuana harvests to establish that the conspiracy involved more than 1,000 plants. This evidence took the form of a phone call between Tran and his girlfriend that the DEA had recorded while it had Tran under surveillance. In the phone call, Tran explained to his girlfriend that he had just harvested enough marijuana plants to produce 19 pounds of marijuana. DEA Special Agent Richard Ellwanger testified that, based on the size of the seized plants, it would have taken 10 plants to yield one pound of marijuana. Thus, Agent Ellwanger opined that Tran had previously grown an additional 190 plants. The government’s evidence showed that the conspiracy involved a total of at least 1,144 plants: 190 that had been grown and harvested prior to the raid; 888 live plants seized in the raid; and 66 cuttings that Tran intended to grow into plants in the future.2
*244Based upon this testimony, the District Court found that the conspiracy involved more than 1,000 plants. Although Tran’s Sentencing Guidelines range was 78-97 months, the District Court sentenced him to the mandatory-minimum sentence of 120 months’ imprisonment.
Tran now appeals, arguing that the District Court erred when it combined live plants with harvested plants when determining the scope of the conspiracy.3
II.
We see no error in the District Court’s factual finding that the conspiracy involved more than 1,000 marijuana plants.4 The marijuana that Tran admitted in his telephone conversation to having grown and harvested before the DEA raid was circumstantial evidence that the conspiracy involved more plants than the 888 discovered by DEA agents. The District Court properly relied on this evidence, as well as the testimony of Agent Ellwanger, to find that the marijuana-growing conspiracy involved at least an additional 190 marijuana plants. See, e.g., United States v. Shields, 87 F.3d 1194, 1197 (11th Cir.1996) (en banc) (“There is more than sufficient evidence that Shields’s relevant conduct included cultivating and harvesting a first crop of marijuana plants in addition to the growing crop found by government agents.”); United States v. Silvers, 84 F.3d 1317, 1327 (10th Cir.1996) (“We have held countless times that if no drugs are actually seized, the government can nevertheless prove the type and quantity of drugs attributable to the defendant through other evidence.... ”); see also United States v. Littrell, 439 F.3d 875, 880-81 (8th Cir. 2006) (considering evidence of past amounts of methamphetamine manufactured, as well as large amounts of precursor chemicals found on the property, to conclude that the charged conspiracy involved more than 500 grams of methamphetamine, despite fact that only 244 grams were seized in the raid); United States v. Fitch, 137 F.3d 277, 282-83 (5th Cir.1998) (“[T]he fact that these 288 marijuana plants had been harvested prior to their discovery did not affect their status as marijuana ‘plants’ involved in this offense for the purposes of applying the mandatory minimum required by 21 U.S.C. § 841(b)(1)(A)(vii).”).
Tran, however, contends that the District Court was prohibited from converting the 19 pounds of harvested marijuana into an estimated number of plants. He urges us to adopt the Second Circuit’s reasoning, as set forth in United States v. Blume, 967 F.2d 45 (2d Cir.1992). We do not, however, read Blume in the same manner as does Tran, and conclude that it is inapplicable in the circumstances of this case.
Unlike this case, Blume did not involve the calculation of the number of marijuana plants for purposes of establishing whether a defendant was subject to a statutorily-mandated minimum sentence. Rather, the question before the Second Circuit was how to calculate the offense level under the Sentencing Guidelines when both the weight of harvested marijuana and the number of plants were ascertainable. Id. at 49-50. The district court had applied the one-kilogram-to-one-plant equivalency set forth in the then-applicable Guidelines to conclude that the defendant was responsible for 11,000 pounds of marijuana. Id. *245at 49. The Second Circuit, in contrast, concluded that the evidence established that only 4,000 pounds should be attributed to the defendant. Id. at 50. It then held that the district court’s determination that the defendant should be sentenced based upon 11,000 pounds of marijuana was unsupported by the evidence.5 Id.
Here, in contrast, the question before the sentencing court was whether the evidence established that the scope of the conspiracy involved more than 1,000 marijuana plants. The District Court properly considered testimony regarding the scope of defendant’s marijuana growing operation, as well as evidence of the size of his past harvest. This evidence easily established that the conspiracy included more than 1,000 marijuana plants. Accordingly, no plain error occurred.
III.
Based on the foregoing, we will affirm Tran’s conviction and sentence. The District Court’s judgment, however, does contain an error, which both sides agree is a clerical error, which should be corrected pursuant to Federal Rule of Criminal Procedure 36. We therefore remand this case and direct the District Court to correct the clerical error by substituting “1,000” for “100” in the judgment.
. 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(a).
. Cuttings are typically not considered plants until they have formed their own roots. See, e.g., U.S.S.G. § 2D1.1, cmt. n. 17 (2007).
. Tran’s counsel initially filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), representing that he could identify no non-frivolous issues to pursue on appeal. Because we were dissatisfied with that brief, we ordered counsel to brief the issue we now address in this opinion.
. Because Tran failed to object to his sentence before the district court, our review is for plain error. United States v. Miller, 594 F.3d 172, 183 n. 6 (3d Cir.2010).
. We, of course, express no opinion about the proper method of calculating the amount of marijuana attributable to a defendant under the Guidelines. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479916/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Steven Byrd appeals the district court’s order accepting the magistrate judge’s recommendation to grant Defendants summary judgment on Byrd’s claims, which the magistrate judge construed as being filed pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcoties, 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. Byrd v. Fed. Bureau of Prisons, No. 2:08-cv-03540-TLW, 2009 WL 3157325 (D.S.C. Sept. 25, 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/8479918/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lonnie Boyd appeals the district court’s order dismissing without prejudice his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Boyd v. Chesapeake Corr. Ctr., No. 2:09-cv-00328-JBF-FBS (E.D.Va. Sept. 2, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court *268and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479921/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ferrell Benjamin Gibbs appeals from the district court’s orders denying his motions to recuse the district court judge and to vacate the criminal judgment as void and to terminate supervised release. We have reviewed the record and conclude that the denial of relief was appropriate. Accordingly, we affirm. We deny Gibbs’ motion for a polygraph examination and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479923/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gideon R. Beatty, IV, appeals the district court’s order denying his motion for a reduction in sentence under 18 U.S.C. § 3582(c) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Beatty, No. 1:07-cr-00066-IMK-JSK-5 (N.D.W.Va. May 19, 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/8479913/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bennie A. Mack, Jr. petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his pro se motions to arrest judgment and to vacate *265judgment. He seeks an order from this court directing the district court to act. Our review of the district court’s docket reveals that the district court has denied the motions. Accordingly, we deny the mandamus petition as moot. 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/8479919/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darris Alaric Ware seeks to appeal the district court’s order denying relief on his 28 U.S.C. § 2254 (2006) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appeal-ability. See 28 U.S.C. § 2253(c)(1) (2006). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595. We have independently reviewed the record and conclude that Ware has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. 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/8479922/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ferrell Benjamin Gibbs appeals from the district court’s orders denying his motions to recuse the district court judge and to vacate the criminal judgment as void and to terminate supervised release. We have reviewed the record and conclude that the denial of relief was appropriate. Accordingly, we affirm. We deny Gibbs’ motion for a polygraph examination and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479924/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gideon R. Beatty, IV, appeals the district court’s order denying his motion for a reduction in sentence under 18 U.S.C. § 3582(c) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Beatty, No. 1:07-cr-00066-IMK-JSK-5 (N.D.W.Va. May 19, 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/8479926/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Crystal Dawn Wemmering appeals the district court’s order denying her motions for recusal and for a new trial. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Wemmering, No. 5:04-cr-00347-F-3 (E.D.N.C. Feb. 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/8479925/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Crystal Dawn Wemmering appeals the district court’s order denying her motions for recusal and for a new trial. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Wemmering, No. 5:04-cr-00347-F-3 (E.D.N.C. Feb. 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/8479927/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Allah Burman petitions for an original writ of habeas corpus, alleging errors in his criminal trial and challenging the constitutionality of his sentence. This court ordinarily declines to entertain original ha-beas petitions filed under 28 U.S.C. § 2241 (2006), and this case provides no reason to depart from the general rule. Moreover, we find that the interests of justice would not be served in transferring the case to the district court. See 28 U.S.C. § 1631 (2006); Fed. R.App. P. 22(a). Accordingly, although we grant Burman’s motion to amend the petition and grant leave to proceed in forma pauperis, we deny the petition. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials be*284fore 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/8479929/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
L. Ruther appeals the district court’s order dismissing his civil complaint under 28 U.S.C. § 1915(e)(2)(B) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Ruther v. Contreras, No. 3:09-cv-00495-RLW (E.D.Va. Sept. 25, 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/8479935/ | *304Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Missie M. Safford appeals the district court’s order granting her former employer’s motion to dismiss her employment discrimination complaint as time-barred. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Safford v. Porters Neck Country Club, Inc., No. 7:08-cv-00220-D (E.D.N.C. Jan. 21, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479966/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Albert Bianchi appeals the district court’s order granting summary judgment in favor of the Appellees on Bianchi’s claim of gender discrimination. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Bianchi v. Old Dominion Univ., No. 2:08-cv-00250-RGD-TEM (E.D.Va. May 1, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479930/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
L. Ruther appeals the district court’s order dismissing his civil complaint under 28 U.S.C. § 1915(e)(2)(B) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Ruther v. Contreras, No. 3:09-cv-00495-RLW (E.D.Va. Sept. 25, 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/8479932/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Phillip Mark Shafer appeals the district court’s order dismissing without prejudice his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Shafer v. Ellis, No. 8:08-cv-00482-PJM (D.Md. Feb. 29, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in *286the 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/8479934/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Paul White Wilson appeals the district court’s orders dismissing his civil action and his motion to supplement the record. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Wilson v. PNC Bank, No. 5:08-cv-00388-H (E.D.N.C. July 15, 2009 & Oct. 14, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479936/ | *304Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Missie M. Safford appeals the district court’s order granting her former employer’s motion to dismiss her employment discrimination complaint as time-barred. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Safford v. Porters Neck Country Club, Inc., No. 7:08-cv-00220-D (E.D.N.C. Jan. 21, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479939/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Huntington National Bank appeals from the district court’s order denying its request for attorneys fees following the improper removal of the underlying proceeding. Because Huntington was not a party to the proceedings in district court, the court acted within its discretion in denying Huntington’s motion for attorney fees. See People for the Ethical Treatment of Animals v. Doughney, 268 F.3d 359, 370 (4th Cir.2001) (providing standard of review). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Davis v. Rutherford, No. 2:09-cv-00096 (S.D.W.Va. filed Oct. 6, 2009 & entered 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/8479940/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Huntington National Bank appeals from the district court’s order denying its request for attorneys fees following the improper removal of the underlying proceeding. Because Huntington was not a party to the proceedings in district court, the court acted within its discretion in denying Huntington’s motion for attorney fees. See People for the Ethical Treatment of Animals v. Doughney, 268 F.3d 359, 370 (4th Cir.2001) (providing standard of review). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Davis v. Rutherford, No. 2:09-cv-00096 (S.D.W.Va. filed Oct. 6, 2009 & entered 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/8479944/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eugene Ernst Jackson appeals the district court’s order denying his motion for Writ of Audita Querela pursuant to the All Writs Act, 28 U.S.C. § 1651 (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Jackson v. United States, Nos. 1:09-cv02778-WMN; 1:01-cr-00464-WMN, 2009 WL 3633342 (D.Md. Oct. 28, 2009). We *309dispense 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/8479945/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Daniel Watlington appeals the district court’s order denying his motion for disqualification of the district court judge who presided over his criminal trial from presiding over the 28 U.S.C.A. § 2255 (West Supp.2009) motion Watlington planned to file. The district court denied the motion on the merits. Because Watlington had not yet filed his § 2255 motion, however, the disqualification motion was premature. Industry Network Sys., Inc. v. Armstrong World Indus., Inc., 54 F.3d 150, 156 (3d Cir.1995). We therefore affirm as modified to reflect that the dismissal is without prejudice because the motion was not ripe 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.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479947/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Rodney Smith appeals from the district court’s order denying his motions for clarification of the judgment, clarification of his sentence, and to reduce his sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Smith, No. 8:94-cr-00065-H-6 (E.D.N.C. Aug. 20, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479949/ | PER CURIAM: *
AFFIRMED. See Rule 47.6
Pursuant to 5th Cut. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479951/ | PER CURIAM: *
Jorge Alberto Hernandez-Castillo pled guilty to being unlawfully in the United States after having previously been deported. He claims the district court erred by imposing a particular sentencing enhancement and by departing upwardly or varying from the calculated Guidelines range.
We AFFIRM.
FACTS
On August 18, 2008, Jorge Alberto Hernandez-Castillo, a native of Honduras, was arrested for public drunkenness in New Orleans, Louisiana. A routine record check revealed that Hernandez-Castillo was in the country illegally after having previously been deported to Honduras in 2005 and again in 2006. Hernandez-Castillo was taken into immigration custody and charged with knowingly and unlawfully being in the United States after deportation in violation of 8 U.S.C. § 1326(a)(2). He pled guilty to the indictment without the benefit of a plea agreement.
In the Presentence Report (“PSR”), the probation officer calculated Hernandez-Castillo’s base offense level to be eight. She recommended a two-level reduction for acceptance of responsibility, and a four-level enhancement due to three or more prior convictions for misdemeanor crimes of violence pursuant to U.S.S.G. § 2L1.2(b)(l)(E). This total offense level of ten, plus the criminal history category of VI, resulted in a recommended Guidelines sentence range of twenty-four to thirty months. The probation officer recommended a thirty-month sentence. However, she noted that Hernandez-Castillo’s criminal history score substantially under-represented the seriousness of his criminal history, because only nine of his thirty-two misdemeanor convictions were countable towards his criminal history score.1 Therefore, the probation officer suggested that an upward departure may be warranted.
Prior to announcing the sentence, the district court explained that in determining whether an upward departure was warranted, he did not take into account the convictions resulting in imprisonment in which Hernandez-Castillo was not represented or the representation by counsel was unknown. However, the district court explained that it could properly consider the underlying conduct leading to these convictions. Finally, the district court gave the following explanation concerning Hernandez-Castillo’s sentence:
In considering whether an upward departure is appropriate, I have also considered the nature of your prior conduct and the severity of your past conduct. I have considered the fact that there are a *400number of constitutionally obtained convictions for which you received no criminal history points. You have obviously been unresponsive to prior punishment.
* * * * * =1=
Considering the likelihood of recidivism and all the other factors that underlie this Court’s sentencing today, including the need to provide you with adequate anger management skills and drug and alcohol treatment, I have reviewed each of the intermediate base offense levels which follow base offense level 10, which when combined with Criminal History Category VI, has a guideline range of 24 to 30 months. I have determined after incrementally moving to each of the next higher offense levels that an appropriate guideline range is offense level 16, which has a guideline range of 46 to 57 months. Alternatively, for the reasons I just assigned, if I have committed legal error in determining that an upward departure is appropriate pursuant to Section 4A1.8 of the United States Sentencing Guidelines. I state for the record that having considered the factors set forth in 18 U.S.C. Section 3553(a) and for reasons I assigned, a non-guideline sentence or a variance is appropriate in this case.
Accordingly, Hernandez-Castillo was sentenced to a fifty-seven month term of imprisonment.
On appeal, Hernandez-Castillo claims the district court committed two errors warranting reversal. First, he argues the district court committed reversible plain error by applying the Section 2L1.2(b)(1)(E) enhancement because he does not have three qualifying prior misdemeanor convictions for crimes of violence. Second, Hernandez-Castillo argues that the district court erred by departing, or in the alternative, varying from the Guidelines range, on the basis of the conduct underlying the misdemeanor convictions obtained in violation of the Sixth Amendment right to counsel.
DISCUSSION
Sentences both inside and outside the Guidelines range are reviewed for abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). First, the court must determine whether the district court committed any significant procedural errors, such as improperly calculating the Guideline range. Id. If the sentence is procedurally sound, the court considers the substantive reasonableness of the sentence imposed. Id. The district court’s application of the Guidelines is reviewed de novo, and its factual findings are reviewed for clear error. United States v. Klein, 543 F.3d 206, 213 (5th Cir.2008).
A. Application of Sectio?i 2Ll.2(b)(l)(E) Sentencing Enhancement
Hernandez-Castillo unlawfully entered the United States after having been deported to Honduras in 2005 and 2006. Therefore, a four-level sentence enhancement could be imposed if he had three or more misdemeanor convictions for crimes of violence. U.S.S.G. § 2L1.2(b)(l)(E). The PSR identified three Nevada misdemeanor convictions as the basis for imposing this enhancement: (1) an August 1999 assault conviction; (2) an October 1999 conviction for threat to life; and (3) an April 2004 battery conviction.
For the first time on appeal, Hernandez-Castillo raises two challenges to the imposition of this enhancement. First, he claims that under Nevada law, battery does not constitute a crime of violence. Therefore, the April 2004 battery conviction is not a proper basis for the enhancement. Second, he argues that the October 1999 threat to life conviction is not a prop*401er basis for the enhancement, because it was obtained in violation of his Sixth Amendment right to counsel. Hernandez-Castillo concedes that plain error review applies, because these alleged errors were not raised in the trial court. See United States v. Peltier, 505 F.3d 389, 392 (5th Cir.2007).
(1) April 200k Battery Conviction
To determine whether a prior offense constitutes a crime of violence, we do not look to the defendant’s actual conduct but “consider the offense categorically by looking ‘only to the fact of conviction and the statutory definition of the prior offense.’ ” United States v. Gomez-Gomez, 547 F.3d 242, 244 (5th Cir.2008) (en banc) (quoting Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). We review de novo the characterization of a prior offense as a crime of violence. United States v. Sanchez-Ruedas, 452 F.3d 409, 412 (5th Cir.2006).
Nevada law defines “battery” as “any willful and unlawful use of force or violence upon the person of another.” Nev.Rev. Stat. § 200.481(l)(a). For a conviction under this statute to constitute a crime of violence, the offense must either (1) be one of several enumerated “offenses under federal, state, or local law,” or (2) be “any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 2L1.2 cmt. l(B)(iii). In this circuit, the force necessary for an offense to constitute a crime of violence is “synonymous with destructive or violent force.” United States v. Dominguez, 479 F.3d 345, 348 (5th Cir.2007) (citation and quotation marks omitted).
In unpublished opinions, other circuits have already held that a Nevada conviction for battery constitutes a crime of violence. See United States v. Ayala-Ayala, 46 Fed. Appx. 489, 490 (9th Cir.2002) (unpublished); see also Vega v. Holder, 348 Fed. Appx. 662, 664 (2d Cir.2009) (holding that a Nevada conviction for domestic violence, which adopts the battery definition in Section 200.481, constitutes a crime of violence) (unpublished).
However, Hernandezr-Castillo argues that the Nevada Supreme Court recently noted that mere touching is sufficient force to constitute battery. See Collins v. State, 203 P.3d 90 (Nev.2009). Thus, he claims his April 2004 battery conviction cannot constitute a crime of violence. The issue before the Nevada Supreme Court in Collins was whether the state statutory definition of “substantial bodily harm” as “prolonged physical pain” was unconstitutionally vague. Id. at 91. The court concluded that “the phrase ‘prolonged physical pain’ must necessarily encompass some physical suffering or injury that lasts longer than the pain immediately resulting from the wrongful act.” Id. at 92-93. Following this statement, the court provided this example: “In a battery, for example, the wrongdoer would not be hable for ‘prolonged physical pain’ for the touching itself. However, the wrongdoer would be liable for any lasting physical pain resulting from the touching.” Id. at 93 n. 3.
We do not interpret this example as revealing a conclusion by the Nevada court that the offense of battery is committed by mere touching. Furthermore, Hernandez^ Castillo has not cited, nor have we found, any case where a defendant was convicted under Section 200.481 for merely touching the victim.
The district court was likely correct that a conviction under Section 200.481 constitutes a crime of violence. However, we would not reverse even if this conclusion were erroneous, because such error would not be plain. Under plain error review, “an error is not ‘plain’ unless it is ‘clear’ or *402‘obvious.’ ” United States v. Salazar, 542 F.3d 139, 147-48 (5th Cir.2008) (citing United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). This court has never addressed this specific issue. The two courts that have done so both held that a conviction under this statute is a crime of violence. The footnote in Collins does not make it obvious that a conviction under Section 200.481 is not a crime of violence. Therefore, Hernandez-Castillo has failed to show that it was plainly erroneous for the district court to count this conviction as part of the basis for the sentencing enhancement.
(2) October 1999 Threat to Life Conviction
The PSR indicates that Hernandez-Castillo was not represented by counsel when he pleaded nolo contendere to the threat to life charge in October 1999, and then received a fifty-two day sentence for this conviction. A conviction violates the right to counsel if it is uncounseled and actually results in imprisonment. Alabama v. Shelton, 535 U.S. 654, 661-62, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002). Such convictions cannot be used to enhance a subsequent sentence. See Custis v. United States, 511 U.S. 485, 494-95, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994). It appears the district court erred in counting this conviction as part of the basis for the sentencing enhancement. However, Hernandez-Castillo cannot prevail under plain error review, because he was not prejudiced by this error.
Hernandez-Castillo has Nevada misdemeanor convictions for “battery-domestic violence” in March 1997 and June 2005. Both of these convictions were obtained while Hernandez-Castillo was represented by counsel. Under Nevada law, a person commits the offense of domestic violence by committing battery against a specifically-listed type of person, such as a spouse, former spouse, minor child, etc. See Nev.Rev.Stat. § 33.018(l)(a). The definition of battery in the domestic violence statute is the same as the definition provided in Section 200.481. English v. State, 116 Nev. 828, 9 P.3d 60, 64 (2000). Therefore, the district court could have counted either of the battery-domestic violence convictions as part of the basis for imposing the enhancement.
Since there are at least three convictions that could have been considered as the basis for imposing the Section 2L1.2(b)(l)(E) sentencing enhancement, Hernandez-Castillo was not prejudiced by any error. Accordingly, he has not met his burden under plain error review.
B. Upward Departure/Variance
Hernandez-Castillo alleges the district court erred in determining that an upward departure or variance was warranted, because the district court considered the underlying actions on which the constitutionally invalid convictions were based.
A conviction violates a defendant’s Sixth Amendment right to counsel if it is un-counseled and results in imprisonment. Shelton, 535 U.S. at 661-62, 122 S.Ct. 1764. Under Nevada law, the state bears the burden to make an affirmative showing “either that counsel was present or that the right to counsel was validly waived, and that the spirit of constitutional principles was respected in the prior misdemeanor proceedings before the record of the prior misdemeanor may be used for enhancement purposes.”2 Dressler v. State, 107 Nev. 686, 819 P.2d 1288, 1295 (1991). It is undisputed that the govern*403ment cannot meet this burden on fifteen of Hernandez-Castillo’s convictions for which he actually received jail time.
At sentencing, the district court explained that it would not consider the unconstitutional convictions themselves when determining whether an upward departure was warranted. However, the district court also explained that pursuant to U.S.S.G. § 4A1.3(a), it could consider the criminal conduct underlying any conviction that was not counted in the criminal history score. Hernandez-Castillo argues that the district court erred by considering the criminal conduct underlying these unconstitutional convictions. We disagree.
A comment in the Guidelines states that “[sjentences resulting from convictions that ... have been ruled constitutionally invalid in a prior case are not to be counted.... Nonetheless, the criminal conduct underlying any conviction that is not counted in the criminal history score may be considered pursuant to § 4A1.3 (Adequacy of Criminal History Category).” U.S.S.G. § 4A1.2 cmt. 6. In addition, Section 4A1.3(a)(2) lists the types of information that can form the basis for an upward departure. These include prior sentences “not used in computing the criminal history category (e.g., sentences for foreign and tribal offenses).” Id. § 4A1.3(a)(2)(A). These Guidelines sections suggest the district court did not err by considering the underlying conduct of the unconstitutionally obtained convictions when determining whether a departure was warranted.
Even when an improper enhancement affects the calculation of the range under the Guidelines, the sentence may still be upheld when the district court acknowledges the possibility of the error and affirmatively states that the sentence would be the same regardless. United States v. Bonilla, 524 F.3d 647, 656-59 (5th Cir. 2008). The district court explained the sentence in terms of the relevant factors, including a demonstrated lack of respect for the law as evidenced by his numerous convictions and the likelihood of recidivism. See 18 U.S.C. § 3553(a) factors. Thus, regardless of any error in applying the enhancement, a fifty-seven month sentence as a variance was justified.3
AFFIRMED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
. A majority of Hemandez-Castillo’s uncounted convictions fell into one of two categories: (1) misdemeanor convictions for which he served jail time, but where he was either not represented by counsel or it was unclear whether he was represented by counsel; or (2) misdemeanor convictions for crimes such as vagrancy, hitchhiking, and trespassing, which are not counted when calculating a criminal history score.
. We look to stale law to determine which party bears the burden of proof in a collateral attack on a prior slate court conviction. Mallard v. Cain, 515 F.3d 379, 382 (5th Cir.2008) (citing Iowa v. Tovar, 541 U.S. 77, 92, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004)).
. Hernandez-Castillo does not challenge the substantive reasonableness of the sentence. Therefore, we do not address this issue. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479955/ | PER CURIAM: *
We affirm for essentially the reasons stated by the trial judge.
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/8479941/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Albert Pressley Wilson appeals the district court’s order accepting the magistrate judge’s recommendation and dismissing Wilson’s civil complaint in which he asserted claims under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 (2006), the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 (2006), and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621 to 634 (2006) and denying reconsideration thereof. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Wilson v. Carolina Power & Light Co., No. 4:05-cv-03597-TLW, 2009 WL 2885823 (D.S.C. Sept. 2, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479943/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eugene Ernst Jackson appeals the district court’s order denying his motion for Writ of Audita Querela pursuant to the All Writs Act, 28 U.S.C. § 1651 (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Jackson v. United States, Nos. 1:09-cv02778-WMN; 1:01-cr-00464-WMN, 2009 WL 3633342 (D.Md. Oct. 28, 2009). We *309dispense 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/8479946/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Daniel Watlington appeals the district court’s order denying his motion for disqualification of the district court judge who presided over his criminal trial from presiding over the 28 U.S.C.A. § 2255 (West Supp.2009) motion Watlington planned to file. The district court denied the motion on the merits. Because Watlington had not yet filed his § 2255 motion, however, the disqualification motion was premature. Industry Network Sys., Inc. v. Armstrong World Indus., Inc., 54 F.3d 150, 156 (3d Cir.1995). We therefore affirm as modified to reflect that the dismissal is without prejudice because the motion was not ripe 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.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479948/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Rodney Smith appeals from the district court’s order denying his motions for clarification of the judgment, clarification of his sentence, and to reduce his sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Smith, No. 8:94-cr-00065-H-6 (E.D.N.C. Aug. 20, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479954/ | PER CURIAM: *
We affirm for essentially the reasons stated by the trial judge.
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/8479957/ | SUMMARY ORDER
Plaintiffs are twelve current and former couriers who claim that defendant has discriminated against them based on age. This case is now before us for the second time. The district judge to whom this case *45was first assigned dismissed the complaint on the pleadings. See Holowecki v. Fed. Express Corp., 02 Civ. 3355, 2002 WL 31260266 (S.D.N.Y.2002). We reversed, 440 F.3d 558 (2d Cir.2006), and the Supreme Court affirmed our reversal, 552 U.S. 389, 128 S.Ct. 1147, 170 L.Ed.2d 10 (2008). On remand, this case was reassigned to Judge Rakoff, who granted summary judgment to defendant. 644 F.Supp.2d 338 (S.D.N.Y.2009). We assume the parties’ familiarity with the case.
The Age Discrimination in Employment Act of 1967 makes it “unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). Where, as here, plaintiffs lack direct evidence of age discrimination,1 we analyze their claims under the McDonnell Douglas, burden-shifting framework. See, e.g., Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466-67 (2d Cir.2001).2 Under the McDonnell Douglas framework, a plaintiff must show that (1) she belonged to a protected class; (2) she was qualified for the position; (3) she suffered an adverse employment action; and (4) similarly situated employees outside the protected class were treated more favorably. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Williams v. R.H. Donnelley Corp., 368 F.3d 123, 126 (2d Cir.2004). The burden then shifts to the defendant to articulate a legitimate, non-discriminatory reason for its actions. Spence v. Maryland Cas. Co., 995 F.2d 1147, 1155 (2d Cir.1993). Should the defendant carry this burden, the burden shifts back to the plaintiff to introduce evidence that the defendant’s explanations are pretextual. Id. at 1155. In order to satisfy their burden at the final stage, plaintiffs must offer evidence that age discrimination was the “but-for” cause of the challenged actions. Gross v. FBL Financial Services, Inc., — U.S. -, 129 S.Ct. 2343, 2350, 174 L.Ed.2d 119 (2009).
1. Plaintiffs discharged for poor performance.3
Plaintiffs Holowecki and Almendarez failed to come forward with evidence that cast doubt on defendant’s claim that they were discharged for inappropriate conduct. Holowecki was discharged after a co-worker complained that he had called her various vulgar names. Although Holowecki denies the co-worker’s accusation, multiple witnesses corroborated her account. The undisputed evidence, there*46fore, establishes that FedEx had a legitimate reason to fire Holowecki.4
Almendarez was discharged after he was repeatedly found to have falsified delivery records to artificially inflate his productivity rating. Thus, the undisputed evidence shows that FedEx had a legitimate reason for Almendarez’s firing as well.
2. Plaintiffs terminated for medical reasons.5
Plaintiffs Lews and Robertson— who were terminated following medical leaves of absence — failed to make a prima facie case of discrimination because they failed to show that they were qualified to work as couriers. Lewis was discharged after she was unable to return to work for over two years, and was unable to find another position. And George Robertson was terminated after he failed three times to report for Temporary Return to Work assignments after he was cleared for such work.
Plaintiffs argue (without citation to the record) that younger couriers were given more time to return to work following injuries. Because there is nothing in the record to substantiate plaintiffs’ claim that defendant’s disability policy was applied differently to older couriers, summary judgment was appropriate.
3. Plaintiffs claiming constructive discharge.
To establish constructive discharge, a plaintiff “must show that the abusive working environment became so intolerable that her resignation qualified as a fitting response.” Pennsylvania State Police v. Suders, 542 U.S. 129, 134, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004); see also Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 789 (7th Cir.2007). This requires a “further showing,” beyond what is necessary to establish a hostile work environment. Suders, 542 U.S. at 134, 124 S.Ct. 2342.
Here, the district court found that the record was “entirely bereft of any evidence that establishes intolerable working conditions.” 644 F.Supp.2d at 355. Specifically, Moncalieri indicated in his resignation letter that FedEx “was a company that I truly enjoyed working for.” Further, Trompics, who was 44 when she was hired, was unable to point to evidence of intolerable working conditions, and the record shows that in many respects she was treated at least as well as younger couriers: her performance ratings were consistently high, and she was awarded the highest possible hourly wage.6
*474. Plaintiffs claiming that they were awarded fewer hours than similarly situated, younger employees.
A significant decrease in pay may constitute an adverse employment action. Galabya v. New York City Bd. of Educ., 202 F.3d 686, 640 (2d Cir.2000). Here, however, there was no evidence that plaintiffs Kennedy, Mutchler, or Demaio suffered any involuntary decrease in pay. Kennedy’s hours decreased only because she took leaves of absence for short-term disability; Mutchler’s hours remained consistent from 1988 through 2006; and Demaio’s hours were well in excess of those of the average courier until 2004, when he refused to work mornings for family reasons.
According to plaintiffs, the evidence on which the district court relied was inaccurate. Plaintiffs argue that FedEx has reported hours that plaintiffs were required to work but for which they were not compensated in an effort to make it seem as though their hours were not reduced over time. Plaintiffs attempt to rely on copies of Kennedy’s W-2s to substantiate this claim, but Kennedy’s W-2s report compensation, not hours. Further, plaintiffs fail to rebut the district court’s finding that the younger comparators that plaintiff selected were cherry-picked, that plaintiffs were given more hours even than their cherry-picked comparators, and that any decrease in plaintiffs’ hours was due to voluntary leaves of absence.
5. Plaintiffs’ disparate impact claim.
Nor, finally, are we persuaded by plaintiffs argument that defendant’s disciplinary and disability policies have a disparate impact on older couriers. It appears that the principal evidence on which plaintiffs seek to rely in support of their disparate impact claim is a series of expert submissions by Daniel S. Hammermesh. In an addendum to his expert report, for instance, Hammermesh concluded that
there was no statistically significant differences in the incidences of warnings [between older and younger FedEx couriers between 2000 and 2002] ... From 2008 through 2007 ... experienced couriers ages 40 and over were significantly more likely to receive warnings than were couriers under age 40.
However, the fact that older couriers were disciplined at higher rates for five out of (as far as we know) a randomly selected eight year period is not sufficiently probative of discrimination. Further, Hammermesh’s analysis also shows that older couriers quit and were terminated at lower rates than younger couriers at FedEx. Finally, plaintiffs do nothing to refute the district court’s finding that plaintiffs’ statistical evidence is “inaccurate and misleading.” 644 F.Supp.2d at 360. Hammermesh’s above-quoted remark is an example: Hammermesh compares rates of warning letters among couriers with at least ten years of experience. The report is silent as to differences in the rates of other forms of discipline, or in warning letter rates among couriers with less than ten years of experience. In view of the misleading nature of plaintiffs’ statistical evidence, it was not an abuse of discretion for the district court to find that this evidence is “insufficiently reliable to be admissible under Fed.R.Evid. 702.” Id. at 361.
We have considered plaintiffs’ remaining arguments and find them to be without merit. The judgment of the district court is AFFIRMED.
.Plaintiffs suggest that alleged remarks of two FedEx managers constitute direct evidence of discrimination. We disagree. Each of the comments concerning “older couriers” on which plaintiffs seek to rely are either "stray remarks,” see Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir.1998), or the remarks of non-decisionmakers, see Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (O'Connor, J., concurring); see also Siino v. New York City Bd. of Educ., 213 F.3d 626, at *1 (2d Cir.2000) (summary order); Luks v. Baxter Healthcare Corp., 467 F.3d 1049, 1056 (7th Cir.2006); Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 545 (3d Cir.1992).
. The Supreme Court has recently noted that it has not "definitively decided” whether McDonnell Douglas burden-shifting applies to ADEA claims. Gross v. FBL Financial Services, Inc., - U.S. -, 129 S.Ct. 2343, 2349 n. 2, 174 L.Ed.2d 119 (2009). Unless and until the Supreme Court instructs us to do otherwise, we will continue to apply McDonnell Douglas to claims arising under the ADEA.
. Plaintiffs have abandoned Kevin McQuil-lan's claims on appeal.
.Plaintiffs argue that the evidence of Holow-ecki's misconduct was not admissible. According to plaintiffs, the declaration of Nanette Malebranche — Holowecki's supervisor— was inadmissible because Malebranche’s recollection was refreshed during her deposition. This argument is frivolous. First, testimony based on recollection that has been refreshed is not hearsay. Second, the document used to refresh Malebranche's recollection was a business record. Third, the document itself is not hearsay, because it was used to establish FedEx's reason for terminating Holowecki, not for its truth.
. Plaintiffs have pursued the claims of only two of the four plaintiffs in this group on appeal; they have abandoned the claims of plaintiffs Martinez and Nelson.
. Plaintiffs argue that Moncalieri intended to raise a failure to hire claim as well as a constructive discharge claim. They suggest that after Moncalieri moved to New Jersey, he was discriminated against when defendant offered him only part time work, when other, younger couriers were offered full-time positions. However, plaintiffs concede that the younger couriers to which Moncalieri compares himself were not offered full-time work during the period relevant herein. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479958/ | OPINION
PER CURIAM.
Appellant Harry Douvos, a federal prisoner incarcerated at the Federal Correctional Institution at McKean in Bradford, Pennsylvania, is serving a sentence of 60 months imprisonment imposed by the United States District Court for the Eastern District of Virginia at D.C. Crim. No. 3:06-cr-00337-l. His projected release date is December 10, 2010. Douvos began participating in the Residential Drug Abuse Program (“RDAP”), see 18 U.S.C. § 3621(e), at FCI-McKean on August 21, 2008. The RDAP gives the Bureau of Prisons the discretion to alter a prisoner’s conditions of confinement or allow him a sentence reduction of up to one year if he successfully completes the program and his conviction was for a nonviolent offense. *120See id. at § 3621(e)(2)(B). On May 17, 2009, Douvos was issued a misconduct, which, although not serious in itself, had serious implications for his continued participation in the RDAP.
According to the Incident Report, on May 17, 2009, a recreation specialist searched Douvos’s hobby craft assigned locker and discovered ceramic products he was not allowed to possess.1 Douvos was issued a Code 305 misconduct for possession of anything not authorized for retention or receipt by the inmate, and not issued to him through regular channels. He had a Unit Discipline Committee (“UDC”) hearing at which he admitted that he had retained the items when he discovered them in his locker. Based on this admission, Douvos was adjudicated guilty of the prohibited act and sanctioned to “hobby craft program removal.” Warden Francisco J. Quintana denied Douvos’s request for an administrative remedy on June 8, 2009.
Unfortunately for Douvos, this misconduct resulted in a fourth Drug Abuse Program (“DAP”) warning, and four DAP warnings in his case constituted grounds for expulsion from the RDAP. On May 27, 2009, Douvos was expelled three classes short of completing the program. As a result of not completing the program, Dou-vos did not get the eleven-month and one week reduction in his sentence he would have earned had he successfully completed the program, nor did he get the six-month halfway house placement that had been scheduled to begin on June 16, 2009.2
On or about June 29, 2009, Douvos submitted for filing a petition for writ of habe-as corpus pursuant to 28 U.S.C. § 2241 in United States District Court for the Western District of Pennsylvania (which eventually was filed on the docket on July 23, 2009), and a motion for a preliminary injunction seeking an expedited telephone hearing and reinstatement in the RDAP. Claiming a violation of his constitutional right to due process in that he was not allowed to present witnesses or documentary evidence at his UDC hearing, Douvos sought expungement of the May 17, 2009 Incident Report.3 In the alternative, he asked to be allowed to repeat phase three of the RDAP. In addition to seeking ex-pungement of the Incident Report (which expungement would automatically render the fourth DAP warning void), Douvos also claimed that the second and third DAP warnings — for falling asleep in class — were unlawfully obtained because of his amply-documented Sleep Apnea disability. He further contended that Program Statement 5330.11 does not require expulsion after four DAP warnings, and he identified two fellow prisoners who had been allowed to graduate from the program with more than four DAP warnings.
On July 17, 2009, the Magistrate Judge held a telephone conference in her cham*121bers on the motion for a preliminary injunction with Douvos and two assistant United States Attorneys participating on behalf of the Bureau of Prisons. A court reporter was present. Douvos explained the nature of his complaint, and the Magistrate Judge questioned counsel for the BOP as to why Douvos was not permitted to call witnesses at his hearing. Counsel explained that, because the Incident Report was minor — that is, loss of good time credit was not among the possible sanctions — Douvos’s misconduct was adjudicated through the Unit Discipline Committee rather than by a Disciplinary Hearing Officer. See N.T., 7/17/09, at 3-4. Witnesses are not permitted at a UDC hearing. See id. at 4.
The Magistrate Judge then asked BOP counsel if the rules and regulations permit a prisoner to be expelled from the RDAP for a misconduct and counsel answered that Douvos’s RDAP agreement, which he signed, plainly stated that expulsion can result from an incident report. See id. at 6-7. Furthermore, the RDAP rules provide that, after a certain number of DAP warnings, expulsion will be considered. See id. Douvos had notice from the three prior DAP warnings that he could be expelled, and the Incident Report resulted in a fourth warning. See id. The Magistrate Judge also questioned BOP counsel about Douvos’s contention that certain identified prisoners with more than four DAP warnings had recently been allowed to graduate from RDAP, but counsel had not yet investigated this allegation and could not supply a substantive response to it. See id. at 10-11. It was noted, however, that all decisions concerning satisfactory completion of RDAP are made on a case-by-case basis. See id.
The Magistrate Judge stated her Report and Recommendation on the record and she recommended that the motion for a preliminary injunction be denied because Douvos failed in his burden to show both a likelihood of success on the merits and irreparable injury, see Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186, 197 (3d Cir.1990). She concluded that the procedural due process protections afforded by Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), apply only when a prisoner’s constitutional interests are implicated. Sandin v. Conner, 515 U.S. 472, 487, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Since Douvos did not have a constitutionally protected interest in early release or release to a halfway house, he had no right to present witnesses or documentary evidence before the UDC. His likelihood of success on the merits was low because the misconduct did not result in a loss of good time credits, he had previous DAP warnings, and the decision whether an inmate should graduate from the RDAP is completely discretionary. See N.T., at 12-15. Douvos could not show irreparable injury because he has no right to a halfway house placement or early release. See id. at 15.
In an order entered on August 11, 2009, the District Court approved and adopted the Report and Recommendation, and, in pertinent part, denied the motion for a preliminary injunction. Douvos has appealed this order. Our Clerk granted him leave to appeal in forma pauperis and advised him that his appeal was subject to summary dismissal under 28 U.S.C. § 1915(e)(2)(B) or summary affirmance under Third Cir. LAR 27.4 and I.O.P. 10.6. He was invited to submit argument in writing, but he has not done so.
We will summarily affirm under Third Circuit LAR 27.4 and I.O.P. 10.6, because it clearly appears that no substantial question is presented by this appeal. We have jurisdiction over the District Court’s interlocutory order denying a preliminary *122injunction under 28 U.S.C. 1292(a)(1) (providing for appeals from “[i]nterlocutory orders of the district courts ... granting, continuing, modifying, refusing or dissolving injunctions.... ”). For the District Court to grant an injunction, the moving party must show that he is likely to succeed on the merits of his petition and that he will suffer irreparable harm if relief is not granted. Hoxworth, 903 F.2d at 197-98. The District Court also should consider the possibility of harm to the non-moving party if the injunction is granted, and whether granting the injunction is in the public interest. See id. In determining whether the District Court abused its discretion in denying a preliminary injunction, we review the court’s underlying factual determinations under a clearly erroneous standard and consider the court’s determinations on questions of law de novo. Acierno v. New Castle County, 40 F.3d 645, 652-53 (3d Cir.1994).
The District Court properly denied Dou-vos’s motion for a preliminary injunction for the reasons given by the Magistrate Judge. Douvos failed in his burden to show both a likelihood of success on the merits and irreparable injury. The interests protected by the Due Process Clause are “generally limited to freedom from restraint which ... imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484, 115 S.Ct. 2293. Douvos is serving a valid sentence, and expulsion from a rehabilitative program for a violation of its rules and regulations “falls within the expected perimeters of the sentence imposed by a court of law.” Id.
Moreover, the statute provides: “The period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve.” 18 U.S.C. § 3621(e)(2)(B) (emphasis added). Use of the word “may” suggests that Congress intended to give the BOP some discretion in administering the statute, even when an inmate has completed the program. Here, Douvos had only a provisional eligibility for halfway house placement and sentence reduction because he did not complete the program.
Since Douvos made no showing that he has a protected interest under § 3621(e)(2)(B), he had no right to present witnesses or documentary evidence before the UDC under Sandin, 515 U.S. 472, 115 S.Ct. 2293. In addition, nothing in the record suggests that Douvos will suffer irreparable injury if he is denied early release or release to a halfway house since he has already served, apparently without serious incident, four years of his five-year sentence. See Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 359 (3d Cir.1980) (risk of irreparable harm means clear showing of immediate irreparable injury or presently existing actual threat). Accordingly, the preliminary injunction standard is not met.
We note, however, that federal prisoners are required to exhaust their administrative remedies prior to seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Moscato v. Federal Bureau of Prisons, 98 F.3d 757 (3d Cir.1996). Dou-vos noted in a brief in support of his motion for a preliminary injunction that he had completed the first round of the administrative process by appealing to the Warden but that his appeal to the Regional Director remained pending.4 Our decision affirming the denial of a preliminary *123injunction in this federal habeas corpus action is without prejudice to the administrative process. BOP counsel indicated at the telephone hearing that she had yet to investigate Douvos’s allegation of arbitrariness in the Program Coordinator’s decision to let some participants graduate from the program with more than four DAP warnings. Because the case is still in progress, our Opinion affirming the denial of Dou-vos’s motion for a preliminary injunction should not be read to express a view on the merits of this allegation. We decide only that the standard for a preliminary injunction has not been met.
For the foregoing reasons, we will summarily affirm the order of the District Court denying appellant’s motion for a preliminary injunction.
.Specifically, all authorized ceramic products must be non-toxic, non-flammable, and contain no health or warning labels. Dou-vos's locker contained two jars of Mayco, Jungle Gems Crystal Glaze and one jar of Duncan SY 554 Antique Bronze Specialty Product, both of which have a high lead content and health caution labels on them, one jar of Amaco Crystaltex Liquid Glaze, which carries a caution label for its high copper content, and one bottle of Magic Mender, a skin and eye irritant that is harmful or fatal if swallowed.
. Douvos does not object to the BOP's apparent policy of maximizing time spent in a halfway house even when such maximization would decrease the maximum sentence reduction under section 3621(e)(2)(B).
. Douvos wanted to establish that the items in his locker could be or had been purchased by prisoners through normal channels and thus were not prohibited.
. In addition, there is no indication on the record before us that he exhausted his administrative remedies with respect to his claim *123that the second and third DAP warnings were improper. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479959/ | OPINION OF THE COURT
NYGAARD, Circuit Judge.
Since this opinion is wholly without precedential value we write solely for the benefit of the parties, who are familiar with the factual and procedural history of this case, in order to explain why we will affirm.
While Oquendo was serving a sentence in a state prison, he sent a letter to a federal judge threatening to kill him. He pleaded guilty to threatening a United States official with intent to impede the performance of his duties in violation of 18 U.S.C. § 115(a)(1)(B). The District Court sentenced him to 77 months in prison, the bottom-end of the career offender guideline range. The District Court also sentenced him to two years of supervised release and assessed him $100.
Oquendo appeals his sentence, claiming that the District Court failed to meaningfully consider relevant factors under 18 USC § 3553(a). We disagree. The prem*148ise of Oquendo’s argument is that the District Court must discuss, on the record, each factor enumerated in Section 3553(a). In this vein, he asserts that the District Court failed to consider his childhood abuse or his mental health issues in sentencing him. None of these issues were explicitly raised by counsel at sentencing as a basis for either a variance or a downward departure. Nonetheless, our review of the record makes it clear that his tragic history was detailed in the presentence report. Based upon the comments of the District Court at sentencing, which specifically referred to both his history and his need for mental health care, we are satisfied that the District Court knew of these facts and gave appropriate, reasonable attention to them. United States v. Tomko, 562 F.3d 558, 568 (3d Cir.2009).
Similarly, Oquendo’s assertions that the District Court gave cursory review to issues that were explicitly raised as bases for mitigation of the sentence also fall flat. First, we find it patently absurd to attempt to portray a letter making multiple, explicit threats of death as something less than a crime of violence. Second, the court plainly referenced Oquendo’s long criminal history, which included juvenile offenses. Nonetheless, the record makes clear that his adult criminal history, by itself, is more than sufficient to categorize Oquendo as a career offender. Finally, Oquendo asserts that the District Court ignored his request for leniency, which was based upon the combined length of his prior sentence and a sentence within the career offender guideline range. The record reflects that the District Court considered the severity of the sentence, but found that it was justified for numerous reasons, including deterrence against a continuation of an entrenched pattern of criminal conduct. We note that the District Court did evince some sensitivity to this issue by sentencing Oquendo to the low end of the career offender guideline range.
For all of these reasons, we will affirm the District Court’s judgment of conviction and sentence. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479960/ | OPINION
PER CURIAM.
Angel Solorzano-Zelaya petitions for review of the Board of Immigration Appeals’ (“BIA”) February 25, 2009 decision, which affirmed the Immigration Judge’s (“IJ”) October 30, 2008 decision denying his request for relief under the Convention Against Torture (“CAT”) and ordering his removal to Honduras. The Government has moved to dismiss the petition for lack of jurisdiction. For the reasons that follow, the Government’s motion is denied, and we will deny Solorzano-Zelaya’s petition.
I.
Solorzano-Zelaya, a native and citizen of Honduras, was admitted into the United States as a lawful permanent resident in 1987. In 2001, a New Jersey state court convicted him of robbery and unlawful possession of a weapon, and sentenced him to five years’ imprisonment. While in prison, he joined a gang and got at least one tattoo, which is in the shape of a teardrop and located below his eye.
In light of his robbery conviction, the Department of Homeland Security commenced removal proceedings against him in September 2007 pursuant to 8 U.S.C. *177§ 1227(a)(2)(A)(iii). He conceded remova-bility and applied for CAT relief. He claimed that although he was no longer in a gang, he would likely be identified as a gang member because of his teardrop tattoo and consequently tortured by, or with the acquiescence of, the Honduran government.
In April 2008, the IJ granted Solorzano-Zelaya deferral of removal under the CAT. The Government appealed the decision to the BIA, which sustained the appeal in July 2008, concluding that Solorzano-Zela-ya had not met his burden for relief under the CAT. The BIA did not explicitly vacate the IJ’s decision; rather, the BIA simply remanded the case to the IJ. The Government subsequently filed an unopposed motion to certify the case back to the BIA, seeking further guidance as to how to proceed with the case. In October 2008, the IJ denied that motion, stating that “this court is convinced that the Board did have the intention to vacate the decision of the [IJ].” (Admin. Rec. at 38.) In that same October 2008 order, the IJ vacated her April 2008 decision, denied Solorzano-Ze-laya’s application for CAT relief, and ordered his removal to Honduras.
Solorzano-Zelaya appealed the IJ’s October 2008 decision to the BIA, which affirmed on February 25, 2009. The BIA, noting that his appeal “further argue[d] in support of his contention that he is likely to be tortured in Honduras,” held that “[t]o the extent that [his] appeal could be viewed as a motion to reconsider our July 23, 2008, decision, [his] arguments are insufficient to warrant reconsideration.” (Id. at 2.) The BIA also rejected his claim that it had failed to consider all of his evidence, and concluded that “[t]here is no reason to disturb our conclusion that the evidence is insufficient to establish that [he] is more likely than not to be tortured if he is removed to Honduras.” (Id. at 2-3.)
Solorzano-Zelaya now petitions for review of the BIA’s February 25, 2009 decision. The Government seeks to dismiss the petition for lack of jurisdiction.
II.
Although we generally lack jurisdiction to review final orders of removal against aliens who, like Solorzano-Zelaya, are removable for having committed an aggravated felony, see 8 U.S.C. § 1252(a)(2)(C), we nonetheless have jurisdiction to review “pure questions of law” and “issues of application of law to fact, where the facts are undisputed and not the subject of challenge.” Kamara v. Att’y Gen. of the U.S., 420 F.3d 202, 211 (3d Cir.2005) (quotation marks and citations omitted); see 8 U.S.C. § 1252(a)(2)(D).
The Government argues that dismissal is warranted here because Solorzano-Zelaya does not raise any legal questions. We disagree. His petition alleges that the BIA misapplied the CAT standard to the undisputed facts of this case, and that the IJ erred in issuing its October 2008 order of removal in the absence of an express mandate from the BIA. Because these claims fall within the ambit of our jurisdiction, we deny the Government’s motion and turn to the merits of Solorzano-Zelaya’s petition.1
III.
We first consider Solorzano-Zelaya’s claim that the IJ should not have issued an order of removal without an express mandate from the BIA. Although the BIA’s July 2008 decision remanded the case to the IJ without further instruction, the BIA’s rejection of Solorzano-Zelaya’s *178CAT claim — the only claim standing between him and his removal to Honduras— left the IJ with nothing to do but order his removal.2 Solorzano-Zelaya has failed to identify any authority indicating that an IJ cannot order an alien’s removal in such an instance. Accordingly, we find no error here.
We now turn to his CAT claim. To obtain relief under the CAT, an alien must show that it is “more likely than not” that he will be tortured if removed to the country in question. 8 C.F.R. § 208.16(c)(2). “Torture” is defined as the intentional infliction of “severe pain or suffering ... by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 208.18(a)(1).
Solorzano-Zelaya argues that the BIA correctly articulated the CAT standard but misapplied it to his case by ignoring evidence and reaching a conclusion unsupported by the record. We disagree. Although he points to an article stating that the Honduran government “arrested more than 4,000 gang members in 2003, often solely because they wore tattoos or colors of known gangs,” (Admin. Rec. at 466), that conduct does not rise to the level of torture. Additionally, his evidence that so-called “death squads” have targeted gang members in Honduras does not establish that he himself, now a thirty-one-year-old former gang member, would likely be targeted, for that evidence focuses on actions taken against youth gang members. Cf. Castellano-Chacon v. INS, 341 F.3d 533, 552 (6th Cir.2003) (rejecting a twenty-seven-year-old former gang member’s CAT claim, where he had submitted evidence describing the targeting of young gang members, generally those twenty-three years old or younger, in Honduras).
Having reviewed the record, we are confident that the BIA considered all of the evidence and properly applied the CAT standard. Because Solorzano-Zelaya has not established that the BIA erred as a matter of law, we will deny his petition for review.
. We have jurisdiction over his petition pursuant to 8 U.S.C. § 1252(a)(1).
. Had the BIA somehow intended a different result, it surely would have said so in its February 2009 decision, rather than simply affirming the IJ's order of removal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479961/ | OPINION OF THE COURT
HARDIMAN, Circuit Judge.
Darrell Gist appeals his judgment after a jury convicted him of: (1) assault, in violation of 18 U.S.C. § 113(a); (2) possession of an object designed and intended to be used as a weapon, in violation of 18 U.S.C. § 1791(a)(2) and (d)(1)(B); and (3) making a false statement in a matter within United States jurisdiction, in violation of 18 U.S.C. § 1001(a). We will affirm.1
I.
Because we write for the parties, we recount only the facts essential to our decision.
Gist attacked a fellow prisoner, Juan Amaya, in a restroom of the United States *183Penitentiary (USP) at Canaan, Pennsylvania. Prior to the attack, Gist used a makeshift knife to inflict superficial puncture wounds on himself. After Amaya left the restroom, Gist fell to the floor in an attempt to pose as the victim of the assault and remained there until prison personnel arrived. Gist refused to identify his alleged attacker when questioned.
Prior to trial, Gist moved to dismiss the indictment, claiming selective and vindictive prosecution. In conjunction with his motion, Gist requested a subpoena requiring production of: “all data relative to USP Canaan’s policy and practice concerning referrals for prosecution of inmates for fighting.... In each instance, identify the race of the inmates involved and whether the instance was referred for prosecution.” The District Court found that Gist did not make a sufficient showing of selective or vindictive prosecution to warrant discovery and denied Gist’s motion to dismiss his indictment.
We review the District Court’s denial of discovery in relation to a selective-prosecution claim for abuse of discretion. United States v. Hedaithy, 392 F.3d 580, 605 (3d Cir.2004). “An abuse of discretion exists where the district court’s decision rests upon a clearly erroneous finding of fact, an errant conclusion of law, or an improper application of law to fact.” Id. at 605-06 (quoting Int’l Union, United Auto., Aerospace and Agric’l Implement Workers v. Mack Trucks, Inc., 820 F.2d 91, 95 (3d Cir.1987)). On the merits, “[i]n both vindictive and selective prosecution claims, we review the district court’s determinations of fact under the clearly erroneous standard. The district court’s application of legal precepts in these claims are given plenary review.” United States v. School-craft, 879 F.2d 64, 67 (3d Cir.1989) (citations omitted).
II.
Gist, an African-American, claims selective prosecution based on racial animus. Although prosecutors enjoy wide discretion, they may not prosecute based on a defendant’s “race, religion, or other arbitrary classification.” United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (citations and quotation marks omitted). To establish that a prosecution is unlawfully discriminatory in this way, “[t]he claimant must demonstrate that the federal prosecutorial policy ha[s] a discriminatory effect and that it [is] motivated by a discriminatory purpose.” Id. at 465, 116 S.Ct. 1480 (citation and quotation marks omitted). Prosecutors are presumed not to violate equal protection, and a defendant can rebut this presumption only by “clear evidence to the contrary.” Id. To be entitled to discovery on a selective prosecution claim, a defendant must meet “a correspondingly rigorous standard,” id. at 468, 116 S.Ct. 1480— that of providing, without discovery, “some evidence tending to show the existence of the discriminatory effect element.” Id. at 469, 116 S.Ct. 1480. In other words, a defendant must make “a credible showing of different treatment of similarly situated persons.” Id. at 470, 116 S.Ct. 1480.
Here, we find no error in the District Court’s decision to deny Gist’s discovery request. The evidence in support of Gist’s selective prosecution claim consists of affidavits from himself and three other inmates at USP Canaan, alleging in general terms that racial discrimination and selective prosecution are rampant there.2 *184These allegations do not amount to “a credible showing” of discrimination because they are devoid of detail and do nothing to show that prison personnel treated Gist less favorably than similarly situated inmates. More fundamentally, Gist points to no evidence that the prosecutor in his case — the United States Attorney for the Middle District of Pennsylvania — was motivated by any racial animus. Accordingly, the District Court did not abuse its discretion in denying Gist discovery on his claim of selective prosecution.
Having determined that Gist was not entitled to discovery on his claim of selective prosecution on the facts of this case, it follows a fortiori that the District Court did not err in denying Gist’s motion to dismiss the indictment because of selective prosecution.
III.
Gist next argues that the District Court erred in denying his motion to dismiss the indictment because of vindictive prosecution. According to Gist, he was prosecuted in retaliation for exercising his right to remain silent when he refused to identify the inmate who attacked him and inflicted his stab wounds.3 The Supreme Court has held:
To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort.... For while an individual certainly may be penalized for violating the law, he just as certainly may not be punished for exercising a protected statutory or constitutional right.
United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982) (citation and quotation marks omitted). “The defendant bears the initial burden of proof in a vindictive prosecution claim and is required to establish the appearance of vindictiveness. The burden then shifts to the prosecution to show that the prosecutor’s decision to prosecute was justified.” Schoolcraft, 879 F.2d at 68.
Gist claims he made a threshold showing of vindictiveness through his affidavit stating that prison staff threatened him with punishment if he refused to speak about the circumstances surrounding his stabbing and/or the identity of the perpetrator. We disagree for two independent reasons. First, prison officials suspected that Gist’s wounds were self-inflicted, so any threats were consistent with punishing Gist for violating the law rather than for exercising his right to remain silent. Cf. Goodwin, 457 U.S. at 372, 102 S.Ct. 2485. Second, as was the case with Gist’s selective prosecution claim, his argument that prison officials threatened him with retaliation sheds no light on whether the United States Attorney’s Office prosecuted him with a retaliatory motive. Accordingly, the District Court did not err in denying Gist’s motion to dismiss for vindictive prosecution.
IV.
In sum, because Gist has failed to show that he was prosecuted because of racial animus or the exercise of legally protected rights, we will affirm his judgment of conviction.
. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 and we have appellate jurisdiction under 28 U.S.C. § 1291.
. Gist has also adduced prison records relating to two assaults by non-African-American inmates. Contrary to Gist’s previous claim, the District Court noted that criminal charges were filed in connection with both incidents, *184and Gist does not challenge this finding on appeal.
. Gist does not complain that he was not informed of his Miranda rights, and the record does not indicate whether he was so informed. We do not address the question of whether prison staff were required to do so here. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479967/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding-precedent in this circuit.
PER CURIAM:
Kenneth Hinton appeals the district court’s order granting in part and denying in part Trans Union LLC’s motion for costs pursuant to Fed. R. Civ. P. 54(d). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Hinton v. Trans Union LLC, No. 1:09-cv-00170-TSE-IDD (E.D.Va. filed Sept. 2, 2009; entered Sept. 3, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479969/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin A. Rideout appeals the district court’s order granting his 18 U.S.C. § 3582(c)(2) (2006) motion. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Rideout, No. 2:00-cr-00007-FPS-JES-12 (N.D.W.Va. Sept. 15, 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/8479970/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
OMarr S. Reid appeals the district court’s order accepting the recommendation of the magistrate judge and dismissing Reid’s civil complaint under 28 U.S.C. § 1915(e)(2)(B) (2006), and a subsequent order denying Reid’s motions for new trial and relief from judgment. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Reid v. North Carolina, No. 3:09-cv-00541-RJC-DCK, 2010 WL 890263 (W.D.N.C. Mar. 8, 2010; 2010 WL 1049257, Mar. 18, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479971/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brian Christopher Robinson appeals the district court’s order granting Defendants’ motion to dismiss his claim under the Equal Pay Act, 29 U.S.C. § 206(d) (2006), as well as his claims for wrongful termination, intentional infliction of emotional distress, and breach of contract, and denying his motion to stay the district court proceedings pending discovery and for issuance of a scheduling order. We have reviewed the record and find no reversible error. Accordingly, we deny Robinson’s motions for oral argument and to refer “special matters” to the United States Attorney General, pursuant to Fed. R. Civ. P. 9(b), and affirm the district court’s judgment. See Robinson v. Centers for Disease Control and Prevention, No. 1:07-cv-02102-BEL (D.Md. Sept. 25, 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/8479972/ | *267Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gregory T. Gary appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C. § 1915A(b)(l) (2006) for failure to state a claim upon which relief can be granted. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Gary v. Hanna, No. 2:10-cv-00104-JBF-FBS (E.D.Va. Mar. 23, 2010). We further deny Gary’s motion for leave to file an amended complaint. 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/8479973/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ernest M. Booker appeals the district court’s order denying his 18 U.S.C. § 3582(c)(2) (2006) motion for reduction of sentence. We have reviewed the record and conclude that the appeal is moot because Booker is no longer in custody. See U.S. Sentencing Guidelines Manual § 1B1.10(b)(2)(C), p.s. (2009); Incumaa v. Ozmint, 507 F.3d 281, 285-86 (4th Cir.2007) (setting forth the principles of appellate mootness). We therefore dismiss the appeal as moot and deny Booker’s motion to appoint counsel. 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 |
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