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https://www.courtlistener.com/api/rest/v3/opinions/8480107/ | SUMMARY ORDER
Defendant Schering Corporation (“Schering”) appeals pursuant to 28 U.S.C. § 1292(b) from an order of the United States District Court for the District of Connecticut, Janet Bond Arterton, Judge, which denied its motion for summary judgment dismissing the claims of plaintiffs, pharmaceutical sales representatives (“Reps”) formerly employed by Schering, for overtime pay under the Fail-Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 201 et seq. Schering moved for summary judgment, arguing that Reps fall within the FLSA’s exemption for “outside salesm[e]n,” 29 U.S.C. § 213(a)(1). In a ruling dated March 30, 2009 and reported at 604 F.Supp.2d 385, the district court denied Schering’s motion, concluding that, because the Reps undisputedly do not sell or make sales as those terms are defined in the FLSA and the regulations promulgated thereunder by the Secretary of Labor, the Reps fall outside the FLSA’s outside sales employee exemption. In an order dated April 17, 2009, the district court certified its order denying summary judgment as worthy of an immediate appeal pursuant to § 1292(b). Schering petitioned this Court, as required by that section, for leave to appeal; we granted the petition and heard Schering’s appeal in tandem with the appeal in In re Novartis Wage and Hour Litigation, 611 F.3d 141. We assume the parties’ familiarity *19with the remaining facts and procedural history of the ease.
On appeal, Schering contends that the district court erred as a matter of law in determining that the Reps were not exempt outside salesmen. We disagree. The burden of proving that employees fall within an exemption from the FLSA overtime pay requirements is on the employer. See, e.g., Bilyou v. Dutchess Beer Distributors, Inc., 300 F.3d 217, 222 (2d Cir.2002). Reviewing the matter de novo, and taking the record in the light most favorable to the plaintiffs, see, e.g., Dillon v. Morano, 497 F.3d 247, 251 (2d Cir.2007), we conclude, for the reasons stated in the district court’s well-reasoned ruling, see 604 F.Supp.2d at 395-403, that Schering did not meet its burden. Accordingly, we affirm the order denying summary judgment for the reasons stated in the district court’s ruling and for the reasons stated in our opinion in In re Novartis Wage & Hour Litigation, 611 F.3d 141 (2d Cir.2010), also issued today.
We have considered all of Schering’s contentions on this appeal and have found them to be without merit. The order of the district court denying Schering’s motion for summary judgment is affirmed, and the matter is remanded for further proceedings not inconsistent with this order. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480109/ | OPINION
PER CURIAM.
Karolyn Sheckells, a citizen of Jamaica, petitions for review of a decision by the Board of Immigration Appeals (“BIA”) denying her request for deferral of removal under the Convention Against Torture (“CAT”). For the reasons that follow, we will deny the petition for review.
I
Sheckells came to the United States in 1994 as a lawful permanent resident. In 2000, she was convicted of selling crack cocaine. After visiting her mother in Jamaica in March 2003, Sheckells arrived at Newark International Airport and requested admission into the United States. On the same day, the Department of Homeland Security issued a notice to appear, charging Sheckells as inadmissible under INA §§ 212(a)(2)(A)(i)(II) and 212(a)(2)(C) [8 U.S.C. §§ 1182(a)(2)(A)(i)(II) and 1182(a)(2)(C) ], based on her narcotics conviction.
Before the Immigration Judge (“IJ”), Sheckells sought deferral of removal under the CAT. She testified that her brother, who lived in the United States, killed another Jamaican in 1998.1 As a result, members of the victim’s family, both in Jamaica and the United States, seek revenge against her family. Sheckells testified that, during her March 2003 visit to Jamaica, she was kidnapped, robbed, and raped by three men. After assaulting Sheckells, the men threatened her and told her to leave Jamaica to ensure that authorities would not go after them. Sheckells described the men to a friend and, based on her description, the friend believed that one of the men was named “Edward” or “Mr. Edward,” and that he was a cousin of the man Sheckells’ brother killed.
After the attack, Sheckells filed a report with the Jamaican police, who told her that they were aware of Mr. Edward and that he had prior problems with the law. The police began an investigation, but Shec-kells cut her trip short and returned to the United States before police officers concluded their work. She stated that she made no effort to follow up with the police *103after returning to the United States. Nor did she present to the IJ any documentary evidence of her attack or the police investigation.
In her request for deferral of removal, Sheckells claimed that she feared that Mr. Edward and his relatives would torture, rape, and kill her if she were removed to Jamaica. The IJ denied relief, reasoning that Sheckells failed to demonstrate that she had faced or would likely face torture at the hands of the government or of private individuals acting with the government’s acquiescence. The BIA agreed, and Sheckells filed a petition for review. The Government filed a motion to dismiss.
II
We will first address the motion to dismiss. The Government argues that INA § 242(a)(2)(C) [8 U.S.C. § 1252(a)(2)(C)] precludes us from exercising jurisdiction over the petition for review. Section 242(a)(2)(C) withdraws appellate jurisdiction over final orders of removal where the petitioner has been convicted of certain crimes, including drug offenses such as distribution. That provision clearly implicates Sheckells’ drug conviction. However, INA § 242(a)(2)(D) expressly preserves judicial review over questions of law, including “issues of application of law to fact, where the facts are undisputed and not the subject of challenge.” Kamara v. Att’y Gen., 420 F.3d 202, 211 (3d Cir.2005) (internal citations and quotation marks omitted). Sheckells does not contest any of the Agency’s factual determinations. Rather, as discussed below, she contends that the IJ and BIA incorrectly applied the law governing CAT relief to the undisputed facts of her case. As such, the motion to dismiss lacks merit, and we will deny it.
III
Because the BIA issued its own opinion, we review its decision rather than that of the IJ. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.2005). However, we also look to the decision of the IJ to the extent that the BIA defers to or adopts the IJ’s reasoning. See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). We review the Agency’s legal conclusions de novo, subject to established principles of deference. See Smriko v. Ashcroft, 387 F.3d 279, 282 (3d Cir.2004).
To qualify for deferral of removal under the CAT, an applicant must satisfy the same requirements as an applicant for withholding of removal under the CAT. See 8 C.F.R. § 208.17(a). That is, the applicant must demonstrate that it is more likely than not that she would be tortured if removed to the proposed country of removal. See Kamara 420 F.3d at 212-13; 8 C.F.R. § 208.16(c)(2). For an act to constitute torture, it must be, inter alia, committed “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). “For purposes of CAT claims, acquiescence to torture requires only that government officials remain willfully blind to torturous conduct and breach their legal responsibility to prevent it.” Silva-Rengifo v. Att’y Gen., 473 F.3d 58, 70 (3d Cir.2007).
In denying relief, the IJ held — and the BIA agreed — -that Sheckells failed to meet her evidentiary burden. Specifically, the IJ noted that Sheckells provided no evidence: (1) of the killing or her brother’s conviction; (2) of her alleged attacker’s existence; (3) that she was actually attacked; or (4) that the Jamaican government in any way authorized, supported, or acquiesced in any revenge attacks by Mr. Edward and his relatives against Sheckells or her family. Given the dearth of evidence presented in support of her request for relief, the IJ concluded that Sheckells failed to demonstrate that it was more *104likely than not that she would be tortured if removed to Jamaica. We agree.
In her petition, Sheckells argues that she satisfied her burden because although the Jamaican government is not “in cahoots” with her attackers, the vendetta against her family is being carried out by individuals the government is unable to control, thus satisfying the CAT standard. This argument is unpersuasive, however. Even if we were to accept Sheckells’ reasoning, we are not compelled to disagree, see Kamara, 420 F.3d at 211, with the IJ’s conclusion that Sheckells simply failed to present sufficient evidence to sustain her burden of proof. Accordingly, we will deny the petition for review.
. Sheckells produced no documentary evidence of the killing or her brother’s convic-lion. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480110/ | *105OPINION
PER CURIAM.
Issa Youssouf Nour, a.k.a. Nour Issa Youssouf, apparently a native and citizen of Chad,1 entered the United States in October 2005 as a nonimmigrant student to attend a language school in New York. He did not attend the school, and the Government charged him with removability for failing to comply with the conditions of his status. Nour conceded the charge and applied for asylum, withholding, and protection under the Convention Against Torture (“CAT”).
The IJ made an adverse credibility determination and denied Nour’s claims for asylum and withholding on that basis. The IJ denied the CAT claim on the grounds that Nour’s “claims [we]re not credible” and that Nour did not “present any additional evidence to indicate that it is more likely than not that he would be tortured if removed to Chad.” The Board of Immigration Appeals (“BIA”) dismissed Nour’s subsequent appeal, ruling that the IJ’s credibility finding was not clearly erroneous and was supportable under the REAL ID Act standards. The BIA further held that Nour did not present “any credible evidence, independent of the [IJ’s] adverse credibility finding, that he would more likely than not be tortured” in Chad. Also, the BIA rejected Nour’s claims of due process violations and held that the IJ did not err in denying a continuance.
Nour, through counsel, submits a petition for review. He argues that, for various reasons, the adverse credibility finding is not supported by substantial evidence. He contends that the adverse credibility determination was made in violation of the REAL ID Act and is otherwise inconsistent with applicable law. Nour also states that the IJ erroneously relied on the adverse credibility determination to conclude that Nour could not make out a claim of future persecution.
We have jurisdiction over Nour’s petition under 8 U.S.C. § 1252. We review factual findings, like an adverse credibility determination, for substantial evidence. See Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir.2005). An adverse credibility finding must be afforded substantial deference, so long as the finding is supported by sufficient, cogent reasons. See id. at 434. We evaluate whether the credibility determination was “appropriately based on inconsistent statements, contradictory evidences, and inherently improbable testimony ... in view of the background evidence of country conditions.”2 Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir.2004).
*106In this case, a reasonable adjudicator would not be compelled to make a favorable credibility determination, see Xie v. Ashcroft, 359 F.3d 239, 243 (3d Cir.2004) (explaining that an adverse credibility finding must be upheld unless any reasonable adjudicator would be compelled to conclude to the contrary), because there are inconsistencies in the record. In his affidavit (found at R. 616-22), Nour described the main event on which he based his claims for relief from removal as occurring “not until October 2005, when [he] was 21 and had graduated from high school.” R. 617. Specifically, he averred that soldiers, including an important general, arrived in the middle of the night some time in October to arrest his father for allegedly engaging in revolutionary activities. They broke down the door to the family compound and beat his father with their weapons without saying a word. As the eldest son, he stepped in to try to help his father, and a couple of the soldiers pushed him away, kicked him, and dragged him hard enough across a bumpy cement floor to leave scars. Nour yelled curses as the soldiers took his father to the general’s waiting Land Cruiser. When he heard the general yell to the soldiers to arrest him, he took off running for several blocks and did not stop until he reached the house of his father’s friend. His father’s friend explained that his father supported a rebellion (the Mouvement pour la Democracie et la Justice a Tchad or the MDJT). His friend hid him, sent him to get a visa,3 and helped him leave the country. In his supplemental affidavit, Nour stated that the arrest of his father occurred “after [he] finished ... high school in 2005.” R. 312. However, he testified at the hearing that the soldiers came to his family’s compound on or about August 14, 2005.
It cannot be said the difference in the dates is insignificant. Although Nour testified about his ethnic Anakaza/Gourane background, his influential political family (including ties to the king of the Anakaza people), and his father’s and other relatives’ past military service, he based his claim primarily on the incident that occurred at his family’s compound. Yet, he reported the date as October in his first affidavit, did not specify the date in the supplemental affidavit, and testified at the hearing that the event occurred in August. (He also stated that he remained at his neighbor’s home from August to October.) To explain the discrepancy, Nour stated that he was confused when he first arrived in the United States alone. R. 261. However, his affidavit was not prepared until August 2006, approximately 10 months after his arrival. R. 236. Moreover, in a clinical interview in February 2007 preceding a medical examination to document his injuries, it appears that Nour stated that he incurred the injuries from the soldiers in October 2005. R. 433.
Another inconsistency in the record that put in doubt Nour’s account is his description of his mother’s visits to his imprisoned father. In his affidavits, Nour stated that his mother visited his imprisoned father once a week to bring him food. R. 315 & 621. However, he testified that his mother saw his father twice in 2005 and no other time since his arrest. R. 184-85. Although Nour, who speaks at least some English, R. 260-61, made an argument about the translation, R. 280, he stated at the start of the hearing that the documents supporting his claim were accurate, R. 176. Nour also argues in his brief that his statements about the visits was hearsay evidence based on telephone conversations under difficult circumstances, Peti*107tioner’s Brief 30; however, Nour did not apprise the IJ of this explanation of the inconsistencies when he testified, R. 238-39.
The IJ and BIA also noted that Nour had submitted a fraudulent birth certificate to Canadian authorities five months after he arrived in the United States in an effort to circumvent the Safe Third Country rules. Although that document is unrelated to his account, the IJ and the BIA concluded that its submission undermined Nour’s credibility.
Although the IJ also discussed the issue of corroboration, he listed the individual inconsistencies to arrive at the negative credibility finding. IJ’s Decision 10-11. The BIA concluded that the adverse credibility finding was supported by the record without considering the corroboration issue. Accordingly, because the inconsistencies provide independent support for the adverse credibility finding, we do not consider the IJ’s corroboration analysis (or the parties’ arguments relating to it). Contrary to the arguments Nour advances, the inconsistencies identified have a basis in the record and are not so minor as to not support the adverse credibility finding. Also, despite Nour’s claim to the contrary, the IJ did not need to evaluate the facts regarding persecution on the assumption that Nour was a credible witness.
The adverse credibility finding, for which there is support in the record, means that Nour cannot make out an individualized claim of past or feared future persecution to support his claims of asylum and withholding. The lack of credible testimony and absence of other evidence also barred the CAT claim. For these reasons, we will deny the petition for review.
. All the evidence in the record (including identity documents) suggests that Nour is a native and citizen of Chad. In conceding re-movability, Nour necessarily agreed with one basis for the charge — that he is a native and citizen of Chad. However, the Immigration Judge ("IJ”) stated that Nour "is allegedly a native and citizen of Chad,” and the Board of Immigration Appeals wrote that Nour "claims to be a native and citizen of Chad.”
. We recognize that the parties present competing arguments regarding the standard that an IJ must follow in making credibility determinations. We note that before the enactment of the REAL ID Act of 2005, an adverse credibility determination could be based on inconsistencies only if the inconsistencies went to the heart of the claim. See Chukwu v. Attorney Gen. of the United States, 484 F.3d 185, 189 (3d Cir.2007). However, a new REAL ID Act standard, which provides that "credibility determinations may be made ‘without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim,' ” applies to Nour's case because he filed his application for relief from removal after May 11, 2005. See id. (quoting the REAL ID Acl); see also Kaita v. Attorney Gen. of the United States, 522 F.3d 288, 296 (3d Cir.2008). Although we have not yet spoken on what the change in the law means, we note that we would come to the same conclusion about the credibility determination in this case under the pre-REAL ID Act standard and any stricter standard of review that follows from the REAL ID Act. See, *106e.g., Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008).
. His visa was issued on October 12, 2005. R. 633. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480112/ | OPINION
DALZELL, District Judge.
Appellant Henry Rome1 appeals the district court’s sanction for his violation of a condition of his supervised release. Rome argues that the district court committed procedural errors by sentencing him above the statutory maximum and failing to consider alternative types of sentences for his violation. He also contends that the sanction was overly punitive and unreasonable. For the following reasons, we will affirm.
I. FACTS AND PROCEDURAL POSTURE
Henry Rome was sentenced for the underlying offense, felon in possession of a firearm, on May 21, 2003. Judge William G. Bassler imposed a sentence of fifty-two months of imprisonment, three years of supervised release, and a special assessment of $100. (Joint Appendix, United States v. Henry Rome, No. 09-3578 (filed Jan. 27, 2010) (“J.A.”) at 7, 21-220
On May 19, 2006, while on supervised release, Rome submitted for drug testing a urine sample from someone else. He then submitted a second sample on the same day, which tested positive for marijuana. On June 21, 2006, he admitted to two violations of his supervised release: unlaw*137ful substance use and failure to answer inquiries or follow instructions. (Id. at 16.) Judge Bassler did not revoke Rome’s supervised release for these violations, but he imposed a special condition that obliged Rome to spend six months in a community corrections center, halfway house, or similar residential facility. (Id. at 17.)
Judge Bassler retired, and this case was then reassigned to Judge Susan D. Wigen-ton. After Rome left the community corrections center, on April 18, 2007 he was arrested by the Atlantic City Police Department and charged with various drug offenses related to cocaine. On July 11, 2008, he pled guilty in New Jersey state court to possession of cocaine with intent to distribute within 500 feet of a public housing facility. (Id. at 28.) In state court, he was sentenced to five years of imprisonment for that offense. (Id.)
Rome appeared before Judge Wigenton on June 18, 2009, and he conceded that he violated the terms of his supervised release by committing another crime, the cocaine sale in Atlantic City.2 (Id.) There is no dispute that pursuant to 18 U.S.C. § 3583(e)(3) the statutory maximum for this violation is twenty-four months, and Rome’s advisory Guideline range was twenty-four to thirty months. At this hearing, Rome’s attorney asked Judge Wigenton to make the sentence for the supervised release violation run concurrently with Rome’s five-year sentence in state court. He also argued that the statutory maximum should be eighteen months, rather than twenty-four months, because Rome had spent six months in a community corrections facility for the previous supervised release violation pursuant to Judge Bassler’s 2006 order.
Judge Wigenton imposed a sanction of twenty-four months of imprisonment, to run consecutively to Rome’s state-court sentence. (Id. at 3-4, 39.) Rome then filed a timely notice of appeal.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over this appeal under 18 U.S.C. § 3742(a). To review Rome’s sentence, we “first ensure that the district court committed no significant procedural error,” and if there is no such error we “then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). See also United States v. Tomko, 562 F.3d 558, 567 (3d Cir.2009) (en banc). The fact that the sentence was a sanction for a violation of a condition of supervised release does not, as a general proposition, change this regimen. United States v. Bungar, 478 F.3d 540, 542 (3d Cir.2007).
III. ANALYSIS
In Rome’s appeal of Judge Wigenton’s sentence, he raises three questions: (1) whether the sentence exceeded the statutory maximum because Rome had previously spent six months in a community corrections facility, (2) whether the district court failed to consider the types of sentences available, as 18 U.S.C. § 3553(a) may require, and (3) whether the sentence was overly punitive and unreasonable. Under the Gall rubric, the first two issues are “procedural” and we should analyze them before addressing the reasonableness of the sanction Judge Wigenton imposed.
A. Statutory Maximum
Pursuant to the current version of 18 U.S.C. § 3583(e)(3), which is the section that applies to Rome’s cocaine sale violation, “a defendant whose term is revoked *138under this paragraph may not be required to serve on any such revocation ... more than 2 years in prison if such offense [the underlying offense of felon in possession] is a class C or D felony.” As the Government explains, the phrase “on any such revocation” was added by an amendment that became effective on April 30, 2003. See PROTECT Act, Pub.L. No. 108-21 § 101(1), 117 Stat. 650, 651 (2003). Some courts had apparently held that the time limits in § 3583(e)(3) applied to the sum total of all violations, rather than to each violation. See, e.g., United States v. Lewis, 519 F.3d 822, 824 (8th Cir.2008). The amendment clarified that the maximum sentence applied to each violation. But because Rome committed the underlying offense (felon in possession) before April 30, 2003, there are potential ex post facto issues if we reject Rome’s argument based on the fact that the two-year maximum applies to each violation. The Government makes another argument, however, that is equally compelling.
Even if we assume that we should aggregate all of Rome’s periods of imprisonment for his violations of supervised release, Judge Wigenton’s sanction remains within the bounds of § 3583(e)(3). Rome contends that the six months that he spent at a community corrections facility for the prior supervised release violation should count against the statutory maximum because those six months “represented a period of confinement akin to imprisonment.” Rome Br. at 7. He argues that the maximum sentence that the district judge could impose for the cocaine sale violation was therefore eighteen months. Rome concedes that he “is aware that most federal appellate case law, including the case law in this circuit, holds that community corrections centers are not equivalent to prison,” but “he raises his specific circumstances for this Court’s consideration and to preserve the issue on appeal.” Id. at 7-8 (citing United States v. Serafini, 233 F.3d 758, 777 (3d Cir.2000)).
In Serafini, a jury convicted the defendant of perjury and the district court sentenced him to a split sentence of five months of imprisonment and five months of house arrest as a condition of supervised release. 233 F.3d at 762 & n. 2. The district court recommended that the Bureau of Prisons designate the Catholic Social Services of Lackawanna County Residential Program as the location for the imprisonment portion of this sentence. Id. at n. 2. On appeal, the Government contended that it was improper for the judge to recommend that Serafini serve his sentence at that facility because it is not a place of “imprisonment.” Id. at 763. The Government argued that U.S.S.G. § 5C1.1 required that Serafini serve at least half of the minimum term in imprisonment and that the judge erred by recommending that Serafini serve that portion of the sentence at the community confinement center. Id. at 777.
We agreed in Serafini that the district judge would have violated the Guidelines if he had actually imposed a sentence of community confinement for the imprisonment portion of Serafini’s sentence. We explained that under § 5C1.1, “ ‘community confinement’ cannot constitute ‘imprisonment’ for purposes of fulfilling the requirement that one-half of a split sentence be satisfied by imprisonment.” Id. But because the district judge made only a recommendation that Serafini serve the prison portion of his sentence at the community confinement center, we concluded that this recommendation was “erroneous” but “technically not reviewable.” Id. at 778. In dicta we explained that the judge’s sentence, if imposed, would have been unlawful. Id.
Thus, although Serafini does not speak directly to the issue at hand — that is, *139whether time spent in community confinement counts against the statutory maximum under § 3583(e)(3) — other decisions persuade us that it should not.
For example, in Reno v. Koray, the Supreme Court held that a defendant is not entitled under 18 U.S.C. § 3585(b) to credit against his sentence for time that he spent in pretrial release at a community treatment center because a community treatment center is not “official detention,” as § 3585(b) requires. 515 U.S. 50, 56, 115 S.Ct. 2021, 132 L.Ed.2d 46 (1995). The Supreme Court overturned our decision in the case, Koray v. Sizer, 21 F.3d 558, 567 (3d Cir.1994) (“we conclude that ‘official detention’ for purposes of credit under 18 U.S.C. § 3585 includes time spent under conditions of jail-type confinement”). In reversing that decision, the Supreme Court stated, among other concerns, that determining whether each defendant had been in “ ‘jail-type confinement’ would require a fact-intensive inquiry into the circumstances of confinement, an inquiry based on information in the hands of private entities not available to the Bureau as a matter of right.” Koray, 515 U.S. at 64, 115 S.Ct. 2021. Rome asks us to examine his personal situation and the specific facts of his time in community confinement, but the Government aptly argues that he thus offers a prime example of the Supreme Court’s concern in Koray.
In United States v. Cintron-Femandez, the applicable Guidelines provided that for the defendant to satisfy the minimum ten-month term of his sentence, the sentencing judge had to impose at least five months of imprisonment, but the other five months could be spent in community confinement or home detention. 356 F.3d 340, 347 (1st Cir.2004) (discussing U.S.S.G. § 5Cl.l(d)). But the district judge sentenced the defendant to five months of home detention and three years of supervised release, with five more months of home detention as a condition. Id. The First Circuit held that “Cin-tron-Fernandez’s sentence must include at least five months of imprisonment in order to satisfy the minimum term” but that the sentence imposed “provides for ten months of home detention with no ‘imprisonment’ at all.” Id. The court reversed and remanded the case for resentencing. See also United States v. Horek, 137 F.3d 1226, 1229 (10th Cir.1998) (“Although the Guidelines permit community confinement to be ‘substituted’ for imprisonment, it does not necessarily follow that the four months Horek spent in community confinement constituted ‘imprisonment’ under the Guidelines.”); United States v. Iversen, 90 F.3d 1340, 1343 (8th Cir.1996) (distinguishing between home detention and imprisonment and holding that a sentencing judge did not improperly impose “imprisonment” when the judge required some home detention as a condition of a sentence of probation).
Rome also contends that U.S.S.G. §§ 5Cl.l(c) and (d) support his position because they provide that in some cases a “sentence of imprisonment” may be satisfied by a combination of imprisonment and community confinement or home detention. These sections state that some community confinement or home detention may be “substitute[d]” for some imprisonment. Rome argues that this demonstrates that imprisonment is the same as community confinement or home detention.
But a better reading of these sections is that they confirm that community confinement and imprisonment are distinct from each other. Just because community confinement may be a total or partial “substitute” for imprisonment under these sections does not mean that community confinement is the same thing as imprisonment. Tellingly, §§ 501.1(c)(2) and (d)(2) also suggest that community con*140finement and prison are different because they do not permit a complete substitution of community confinement for the prison sentence.
Imprisonment is a sentencing sanction distinct from community confinement. For all of these reasons, we reject Rome’s first procedural argument.
B. Kinds of Sentences Available
Rome next contends that Judge Wigenton failed to consider “the kinds of sentences available,” which is factor (3) of 18 U.S.C. § 3553(a).3 At the sentencing hearing, Rome requested a split sentence — a combination of incarceration, a halfway house, and house arrest. He also asked that his sentence be imposed concurrently with his state court sentence.
On appeal, Rome contends that Judge Wigenton did not properly consider these requests and that the “district court focused exclusively on the need to send a message to the community.” Rome Br. at 10. In support of this argument, Rome puzzlingly quotes Judge Wigenton’s statement that “ ‘from the Court’s perspective, there’s a need to deter not only the community, but there’s a need to deter you.’ ” Id. This statement shows the opposite of Rome’s argument — that Judge Wigenton considered not only general deterrence but also specific deterrence of Rome himself.
From the transcript of the hearing it appears that Judge Wigenton listened to defense counsel’s arguments on these points and made sure she understood the defendant’s proposal regarding the split sentence. (See J.A. 34.) Just because Judge Wigenton did not adopt Rome’s positions, or specifically articulate her rejection of them, does not mean that she failed to consider alternatives to incarceration. See Rita v. United States, 551 U.S. 338, 358-59, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (“Where a matter is as conceptually simple as in the case at hand and the record makes clear that the sentencing judge considered the evidence and arguments [e.g., by listening to the argument, considering the evidence, and being “fully aware” of the defendant’s issues] we do not believe the law requires the judge to write more extensively.”). Judge Wigen-ton noted, moreover, that Judge Bassler had been lenient in continuing Rome’s supervised release for the earlier supervised release violation, but that Rome had nonetheless rebuffed the probation office’s attempts to help him and had been a repeat violator. (J.A. 37.) This is further evidence that Judge Wigenton indeed considered Rome’s request for a different kind of sentence but rejected it.
For these reasons, we deny Rome’s appeal on this point, as well.
C. Reasonableness
There being no flaws with the two procedural issues that Rome raises on appeal, we now turn to his argument that the twenty-four-month revocation sentence is “overly punitive.” Rome Br. at 10. Rome contends that Judge Wigenton’s sentence is more than necessary to achieve the sentencing goals, especially as he will spend a total of seven years in prison for “what amounts to a relatively small drug possession.” Id. at 11.
As the Supreme Court made clear in Gall, we review the reasonableness of *141Judge Wigenton’s sentence, which was within the Guidelines range, under an abuse-of-discretion standard. See also Tomko, 562 F.3d at 568 (“In other words, if the district court’s sentence is procedurally sound, we will affirm it unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.”). Rome has the burden of proving that the sentence was unreasonable. United States v. Lessner, 498 F.3d 185, 204 (3d Cir.2007).
At the violation hearing, Judge Wigen-ton expressed concern about Rome’s relative youth, his repeat offenses, his continued failure to comply with the conditions of his supervised release, and the break he got from Judge Bassler on the previous drug violation. She also mentioned general deterrence and “the message that [she] send[s] to the community.” (J.A. 38.) She did not say anything to suggest that she was sentencing him for improper reasons, and Rome has not pointed to anything in the record to the contrary.
Rome’s only argument is that seven years in jail is somehow too long for what he sees as low-level drug offenses. But that contention does not begin to show that Judge Wigenton’s sentence was an abuse of discretion, especially after Tom-ko.
IV. CONCLUSION
As Rome has raised no meritorious legal issue on appeal, we affirm the sanction Judge Wigenton imposed.
. It appears that this defendant's last name is actually "Roman,” but the caption of the case — and every official document in it — lists him as "Rome.”
. At the June 18 hearing, Rome admitted that he sold “crack cocaine.” (J.A. 29.)
. It is a nice question whether such an argument is embraced within the general teaching of Bungar, as that decision itself recognizes in its contrast of § 3553(a)(3) with § 3583(e), which conspicuously omits "the kinds of sentences available.” See Bungar, 478 F.3d at 543 n. 2. We nevertheless noted the Second Circuit's observation that "this omission does not foreclose a court from considering ‘other pertinent factors.’" Id. (quoting United States v. Williams, 443 F.3d 35, 47-48 (2d Cir.2006)). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480115/ | OPINION
PER CURIAM.
Harry Palandi petitions for review of an order of the Board of Immigration Appeals (“BIA”), which dismissed his appeal from an Immigration Judge’s (“IJ”) final removal order. We will deny the petition for review.
Palandi, a native and citizen of Indonesia, applied for: (1) asylum; (2) withholding of removal; and (3) relief under the Convention Against Torture (the “CAT”), claiming that he was persecuted in the past, and that he was in fear of future persecution, on the basis of his Chinese ethnicity and Christian religion. In a June 21, 2006 decision, the IJ found that his asylum application was untimely filed. The IJ also concluded that he did not meet his burden of proof for withholding of removal, or relief under the CAT. After a series of procedural problems not at issue here, the BIA issued an order on April 13, 2009, affirming the IJ’s removal order. A.R. 3-6. Palandi filed a timely petition for review of that order.
Palandi raises four issues. He contends: (1) that the IJ applied the wrong standard in concluding that Palandi was ineligible for withholding of removal; (2) that the BIA’s decision amounts to an affirmance without opinion, since the decision contains little more than a summary recitation of the IJ’s analysis; (3) that the IJ did not *170adequately analyze the Country Conditions and Human Rights Practices Report; and (4) that because Palandi testified about prior instances of persecution, he was entitled to a presumption that it was likely that he would be persecuted in the future if he were to return to Indonesia. We agree with the Government that Palandi failed to raise issues (1), (3), and (4), in either his Notice of Appeal to the BIA, or his brief to the BIA. See A.R. 87-89 (Notice of appeal); A.R. 30-36 (brief). Because Palandi failed to exhaust his administrative remedies as to these arguments, we therefore lack jurisdiction to consider them. 8 U.S.C. § 1252(d)(1).
Because issue (2) concerns the manner in which the BIA rendered its decision, Palandi could not raise the issue in his appeal to the BIA; however, we find the argument without merit. The BIA did not issue an affirmance without opinion; the BIA explained its decision in several paragraphs. Further, we have held that an affirmance without opinion does not violate an alien’s Due Process rights. Dia v. Ashcroft, 353 F.3d 228, 238 (3d Cir.2003) (en banc).
To the extent Palandi’s brief may be generously construed as challenging, in general, the denial of withholding of removal, we find that substantial evidence supports the BIA’s finding that Palandi did not show he would face a clear probability of persecution if he returns to Indonesia.1 To be eligible for withholding of removal, Palandi was required to demonstrate that “there is a greater-than-fifty-percent chance of persecution” in Indonesia based on one of the protected grounds. Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir.1998); see also 8 U.S.C. § 1231(b)(3)(C). If an alien proves past persecution, a rebuttable presumption of future persecution is created. Kaita v. Att’y Gen., 522 F.3d 288, 296 (3d Cir.2008).
The incidents Palandi described do not rise to the level of past persecution. Pa-landi was once punched on a public bus, allegedly due to his Chinese heritage, and his church was once closed due to a bomb threat.2 These incidents, however, do not constitute persecution. Nor does Palandi’s testimony that he saw a burned corpse in the street during the 1998 anti-Chinese riots or that his grandmother, who lives in Indonesia, receives threatening letters. See Fatin v. INS, 12 F.3d 1233, 1243 (3d Cir.1993) (“ ‘persecution’ is an extreme concept that does not include every sort of treatment our society regards as offensive”). Indeed, as the BIA noted, Palan-di’s mother and grandmother continue to live in Indonesia unharmed.
Palandi appears to argue that conditions in Indonesia present a problem to Chinese Christians in general. However, this Court has declined to find a pattern or practice of persecution of ethnic Chinese Christians in Indonesia and has stated that the 2005 through 2007 State Department reports show improved treatment of that group. Wong v. Att’y Gen., 539 F.3d 225, 234 (3d Cir.2008).
*171For the foregoing reasons, we will deny the petition for review.
. Palandi makes no mention of the IJ's decision to pretermit his asylum application, and in any event, this Court lacks jurisdiction to review the IJ’s determination that Palandi's asylum application was not timely filed. See 8 U.S.C. § 1158(a)(3); Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir.2003). Palandi's brief also lacks any reference to the denial of relief under the CAT. Accordingly, the claim has been waived. Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir.2004).
. Petitioner's brief states that "his church had a bomb planted in it,” Pet. Br. at 3, but the record does not reflect that there actually was a bomb in the church. See A.R. 135 (“The church was closed down because [sic] the bomb threat.”) | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480125/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Steven Lester appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief without prejudice 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. Lester v. Greenville County Courthouse, No. 4:09-cv-01824-HFF, 2009 WL 2855170 (D.S.C. *242Sept. 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/8480126/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bobby Ray White, Jr., appeals the district court’s order denying his 18 U.S.C. § 3582(c) (2006) motion for a sentence reduction. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. White, No. 5:98-cr-00158-BO-1 (E.D.N.C. July 21, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480127/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Faruq C.A. Shafiq appeals the district court’s order denying relief on his 18 U.S.C. § 3582(c) (2006) motion. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Shafiq, No. 3:03-cr-00338-JRS-l (E.D.Va. Aug. 10, 2009). We deny Shafiq’s motion for appointment of counsel and dispense with oral argument because the *245facts 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/8480129/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marie Therese Assa’ad-Faltas, M.D., M.P.H., appeals the district court’s order adopting the magistrate judge’s recommendation to affirm the Commissioner’s decision denying her disability insurance benefits under the Social Security Act, as well as its order denying her Fed. R. Civ. P. 59(e) motion. We have reviewed the record and find no reversible error. Accordingly, although we grant Assa’ad-Fal-tas’s motion for leave to proceed in forma pauperis, we deny her motion for extension of time to file a supplemental pro se brief and affirm the district court’s orders. See Assa’ad-Faltas v. Commissioner of Soc. Sec., No. 3:06-cv-00080-TLW (D.S.C. Mar. 27, 2007; filed Oct. 19, 2009, entered Oct. 20, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480130/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Ladale Reeves appeals the district court’s order adopting the magistrate judge’s recommendation to grant Defendant’s summary judgment motion on his discrimination and retaliation claims under the Americans with Disabilities Act of 1990, 42 U.S.C.A. § 12101 to § 12213 (West 2005 & Supp. 2010). We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s judgment. See Reeves v. Nuvox Commc’ns, Inc., No. 6:08-cv-04031-HMH, 2009 WL 4016617 (D.S.C. Nov. 18, 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/8480131/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Randy and Mary Williams appeal the district court’s order granting summary judgment to the Defendants on the Williams’s civil complaint. We have reviewed the record and find no reversible error. Accordingly, we deny Plaintiffs’ motion for appointment of counsel and affirm for the reasons stated by the district court. Williams v. APAC Atlantic, Inc., No. *2653:08-cv-03432-JFA, 2010 WL 569735 (D.S.C. Feb. 11, 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/8480132/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cecil D. Addison appeals the district court’s order dismissing his Title VII complaint for failure to comply with a court order. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Addison v. Volvo Trucks of N. Am., Inc., No. 7:09-cv-00088-sgw-mfu (W.D.Va. Feb. 3, 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/8480133/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Stephen F. Buzzell and Kimberly B. Buzzell appeal the district court’s order dismissing them motion for reconsideration of its remand order for lack of subject matter jurisdiction pursuant to 28 U.S.C. §§ 1447(c), (d) (2006). Because the district court’s remand to state court of an unlawful detainer proceeding filed under Virginia law was premised on its lack of subject matter jurisdiction, the district court’s order is not subject to review. 28 U.S.C. § 1447(d); Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127-28, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995).
Accordingly, we dismiss the appeal for a lack of subject matter 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/8480134/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas Floyd Littlejohn appeals the district court’s order denying his motion for a reduction of sentence filed pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find the district court did not abuse its discretion in denying the motion. See United States v. Stewart, 595 F.3d 197, 200 (4th Cir.2010). Accordingly, we affirm the district court’s *269order for the reasons stated there. See United States v. Littlejohn, No. 1:90-cr-00231-MR-DL (W.D.N.C. Aug. 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/8480135/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ralph Johnson, a federal prisoner, appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C.A. § 2241 (West 2006 & Supp.2010) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Johnson v. Deboo, No. 5:08-cv-00184-FPS-JSK, 2009 WL 3583695 (N.D.W.Va. Oct. 26, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480136/ | PER CURIAM: *
Daniel E. Becnel Jr. appeals from the district court’s order dividing fees and costs between the attorneys involved in this class action. Becnel argues that the district court erred by failing to consider the factors prescribed by Johnson v. Georgia Highway Express, Inc.,1 failing to hold an evidentiary hearing, and awarding fees to the attorneys who challenged the fee *300award in an earlier appeal. For the following reasons, we affirm.
I
In its order approving the class settlement agreement, the district court approved $6,875,000 in attorneys’ fees, costs, and expenses, and appointed a fee committee to allocate the award between plaintiffs’ counsel. The district court initially awarded Becnel over $400,000 in attorneys’ fees and costs as a result of this process. On appeal, this court determined that the process used to allocate the awards was inadequate, and we vacated the order approving the allocation.2
On remand, the district court appointed a special master to consider the appropriate fee distribution. The court ordered all attorneys requesting fee and expense reimbursement to submit to the special master a sworn affidavit accompanied by a memorandum of law, which was not to exceed twenty-five pages,' supporting the request and including a complete analysis of the Johnson factors.3 Becnel submitted 185.5 hours to the special master.
Each attorney had an opportunity to review the submissions of the other attorneys, and counsel could submit additional memoranda discussing objections to the submissions of other counsel. The special master reviewed the attorneys’ submissions and recommended the appropriate allocation of the attorneys’ fees. The special master’s report described the process he used to review the submissions and explained the basis for the recommended award to each individual attorney or firm.'
After the special master issued his recommendation, the district court permitted attorneys to file objections, specifying that the objections were to be based on the Johnson factors. Becnel filed an objection. After hearing oral argument, the district court denied Becnel’s objection, noting that “Becnel submitted 185 hours of attorney time in his application to the Special Master and the award reflects that time.” After ruling on the other objections, the district court entered final judgment on the attorneys’ fees. Becnel appeals his award of $138,128.29.
II
We review the district court’s award of attorneys’ fees for abuse of discretion.4 “To constitute an abuse of discretion, the district court’s decision must be either premised on an application of the law that is erroneous, or on an assessment of the evidence that is clearly erroneous.”5 The record must “clearly indicate[] that the district court has utilized the Johnson framework as the basis of its analysis, has not proceeded in a summary fashion, and has arrived at an amount that can be said to be just compensation.”6
*301hi
Becnel argues that the district court’s award is not consistent with the Johnson framework. The parties dispute whether Becnel has waived this argument by failing to raise such an objection below. However, assuming without deciding that Becnel raised this argument in the district court, we hold that the district court did not abuse its discretion in applying the Johnson factors.
The special master’s report and recommendations lists the Johnson factors and states that the special master considered the factors in reaching his recommendation. The special master also explained his rationale in determining Becnel’s recommended award, noting Becnel’s experience and the extent to which he participated in the case. Becnel submitted fee entries totaling 185.5 attorney hours, but while Becnel asserted that he was contacted by thousands of class members after settlement and that he maintained contact with his clients throughout the litigation, Becnel did not include any fee entries for the time spent dealing with his clients and other class members. Because there were limited funds available to divide between the 33 firms involved in the class action, the special master’s analysis necessarily included a comparison between Becnel’s participation and that of other firms. The special master concluded, “While Daniel Becnel’s work as Liaison Counsel was extremely valuable, his contribution to the class did not equal or surpass that of Co-Lead Counsel.” Thus, “[b]ased on the level and extent of [Becnel’s] activity,” the special master awarded Becnel $135,900 in fees, as well as $7,633.80 for expenses.
The district court permitted Becnel to object to the recommended award and specified that the objection should be based on the Johnson factors. After hearing oral argument on Becnel’s objection, the district court found that the special master’s recommendation accurately reflected the 185 hours of attorney time Bec-nel submitted in his fee application. We agree. Thus, the record clearly indicates that the district court used the Johnson framework as the basis of its analysis, did not proceed in a summary fashion, and that Becnel’s award “can be said to be just compensation.”
IV
Becnel also maintains that the district court erred by failing to hold an evidentiary hearing. A district court is not required to hold a hearing on a motion for attorneys’ fees in a class action.7 In this case, the district court declined to hold an evidentiary fee hearing because “the Court has nothing before it upon which to hold [a full evidentiary] hearing.” The court determined that “Becnel submitted 185 hours of attorney time in his fee application and the Special Master’s recommendation reflects that amount. Now is not the time to discuss the considerable other work that Becnel claims to have performed yet did not include in his fee application.” Becnel contends that he was entitled to a full evidentiary hearing because submissions were limited to three pages. However, the record shows that he could have submitted a 25-page memorandum, and all other attorneys were able to submit their applications within the parameters established by the district court. Accordingly, we hold that the district court acted within its discretion when it declined to hold an evidentiary hearing.
*302V
Becnel also asserts that it was clear error to award additional fees to the attorneys that challenged the initial awards in High Sulfur I. We disagree. Generally, attorneys are not awarded fees for appellate challenges in the fee application process.8 However, this does not apply when “the fee award is not being paid from a fund created for the benefit of plaintiffs.”9 In the present case, the appellate-attorney fee award comes from a dedicated fund for legal costs; it does not diminish the plaintiffs’ recovery. Furthermore, the fee application process was meant to divide the dedicated fund fairly. Because of the successful appeal in High Sulfur I, several nonparticipating lawyers received greater compensation. It is well established that federal courts, through the exercise of their equity powers, may call upon a group that benefits from litigation efforts to share the costs of litigation, including attorneys’ fees.10
VI
The appellees argue that Becnel’s appeal is frivolous and request the court to sanction Becnel. While we decline to impose sanctions, we do note the poor quality of Becnel’s brief in this case. Becnel’s brief is riddled with typos and grammar mistakes, and it does not contain even one citation to the record. We admonish Bec-nel to take more care in drafting documents to be filed with the courts.
* * :¡: * =1= *
Accordingly, the district court’s judgment is AFFIRMED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4.
. 488 F.2d 714, 717-19 (5th Cir.1974), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989).
. Silvestri v. Barrett (In re High Sulfur Content Gasoline Prods. Liab. Litig.) (High Sulfur I), 517 F.3d 220 (5th Cir.2008).
. See Johnson, 488 F.2d at 717-19 (establishing that a court must consider the following factors in awarding attorneys’ fees: (1) the time and labor involved; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to the acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the political “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases).
. Strong v. BellSouth Telecomms., Inc., 137 F.3d 844, 850 (5th Cir.1998).
. Grigson v. Creative Artists Agency L.L.C., 210 F.3d 524, 528 (5th Cir.2000).
. High Sulfur I, 517 F.3d at 227 (quoting Forbush v. J.C. Penney Co., 98 F.3d 817, 823 *301(5th Cir.1996) (internal quotation marks omitted)).
. Id. at 231; see also Fed.R.Civ.P. 23(h).
. Mautner v. Hirsch, 32 F.3d 37, 39 (2d Cir.1994).
. Id.
. See Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, 62 L.Ed.2d 676 (1980) (“Since the decisions in Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157 (1882), and Central Railroad & Banking Co. v. Pettus, 113 U.S. 116, 5 S.Ct. 387, 28 L.Ed. 915 (1885), this Court has recognized consistently that a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney’s fee from the fund as a whole.”). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480138/ | PER CURIAM: *
The attorney appointed to represent Ci-priano Vences-Diaz has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Vences-Diaz has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, *324counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480139/ | PER CURIAM: *
Jesus Cortez-Lopez (Cortez) appeals the sentence imposed following his guilty *326plea conviction to illegal reentry of a previously deported alien, arguing that his sentence is greater than necessary to satisfy the sentencing goals of 18 U.S.C. § 3553(a). Cortez argues, for the purpose of preserving the issue for possible Supreme Court review, that his within-guidelines sentence should not be presumed reasonable because U.S.S.G. § 2L1.2 is not empirically based and thus is flawed under Kimbrough v. United States, 552 U.S. 85, 109-10, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). He argues that his sentence is greater than necessary to meet the sentencing goals of § 3553(a) because the Sentencing Guidelines account for a prior conviction both to increase his offense level and to calculate his criminal history score. Cortez further contends that the guidelines range overstated the seriousness of his offense because his conduct was not violent and that the guidelines range did not properly account for his personal history and characteristics, including his motive for reentering.
Cortez’s empirical data argument is foreclosed by this court’s precedent. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, — U.S. —, 130 S.Ct. 378, 175 L.Ed.2d 231 (2009); see also United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, —— U.S. ——, 130 S.Ct. 192, 175 L.Ed.2d 120 (2009). We have also previously rejected the argument that the double counting of a defendant’s criminal history necessarily renders a sentence unreasonable. See Duarte, 569 F.3d at 529-31; see also U.S.S.G. § 2L1.2, comment. (n.6).
Cortez’s arguments concerning the district court’s balancing of the § 3553(a) factors amount to a disagreement with the district court’s weighing of these factors and the appropriateness of his within-guidelines sentence. This disagreement does not suffice to show error in connection with his sentence. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.2008). Cortez has not shown that his sentence was unreasonable, and he has not rebutted the presumption of reasonableness that attaches to his within-guidelines sentence. See United States v. Armstrong, 550 F.3d 382, 405 (5th Cir.2008), cert. denied, — U.S. —, 130 S.Ct. 54, 175 L.Ed.2d 44 (2009); United States v. Alonzo, 435 F.3d 551, 554-55 (5th Cir.2006). Accordingly, the judgment of the district court is AFFIRMED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480141/ | PER CURIAM: *
This case is remanded to the district court for further proceedings to consider the Supreme Court’s decision in Citizens United v. Federal Election Commission, — U.S. —, 130 S.Ct. 876, — L.Ed.2d — (2010).
We do not retain jurisdiction.
REMANDED.
Pursuant to 5tii 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/8480143/ | PER CURIAM: *
AFFIRMED. See 5th Cir. R. 47.6.
Pursuant to 5th Cir R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480144/ | ORDER
In a previous opinion we granted the petition for review filed by Temesgen Woldu Haile and remanded the case — for the second time — to the Board of Immigration Appeals. Haile v. Holder, 591 *502F.3d 572 (7th Cir.2010) (Haile II). Haile now seeks an award of attorneys’ fees and costs under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A), which directs a court to award a prevailing party in a litigation with the United States his attorneys’ fees and other expenses “unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.” Id.; see Gatimi v. Holder, 606 F.3d 344, 346-47 (7th Cir.2010). The government opposes the motion and argues that its position was substantially justified. We disagree, and accordingly grant Haile’s motion.
In support of the government’s contention that its position was substantially justified, the government first asserts that the issue presented by the case — whether divestment of citizenship based on ethnicity constitutes persecution — was complex and novel, which weighs in its favor. See, e.g., Kholyavskiy v. Holder, 561 F.3d 689, 691 (7th Cir.2009). The government acknowledges that in Gatimi, 606 F.3d at 347-48, we explained that a novel question may have an obvious answer that makes the government’s position untenable, but the government contends that our decision in the first Haile case, Haile v. Gonzales, 421 F.3d 493 (7th Cir.2005) (Haile I), makes it clear that the answer here was not obvious. In Haile I we concluded that we were “not yet able to say” whether denationalization is per se persecution and acknowledged that “[t]he meaning of ‘persecution’ in immigration law remains ill-defined,” so we remanded the case to the Board for “additional factual findings and legal consideration.” Id. at 496-97. But our reluctance to answer the question stemmed more from the “primary responsibility” of the Board to act in the first instance and the incomplete record. Id. It is also worth noting that the government did not litigate the case as though it involved a novel issue, but instead insisted that Faddoul v. INS, 37 F.3d 185 (5th Cir.1994), and De Souza v. INS, 999 F.2d 1156 (7th Cir.1993), which deal with a sovereign’s right to deny or bestow citizenship, provided on-point precedent.
Second, the government maintains that the BIA’s decision on initial remand wasn’t contrary to Haile I, as the Board recognized that it was supposed to consider whether divestment of citizenship is per se persecution and concluded that it is not. Although the Board recognized the question it was supposed to answer on remand, as a member of the panel pointed out at oral argument for Haile II, the Board’s decision “skirted the issue.”
The government further argues that its position was substantially justified despite our disagreement with the Board’s conclusion that stripping Haile of his citizenship did not amount to persecution, because we agreed in Haile II with the Board’s premise that not all denationalizations amount to persecution. 591 F.3d at 573-74. According to the government, the Board “fully explained its reasoning,” so our disagreement with the Board’s conclusion does not mean that its decision was without rational basis. The government’s argument ignores our repudiation of the Board’s reasoning in Haile II, where we determined that the Board’s analogy to instances in which altered boundaries change an individual’s citizenship was inapt: in such situations the individual does not become stateless, and statelessness as a result of ethnicity was the basis of Haile’s asylum claim. Id. at 573. Moreover, far from agreeing that the Board’s decision was “fully” reasoned, we concluded that the Board had “leapt to the conclusion that even if a person loses his citizenship because of a ‘protected ground’ ... such a loss of citizenship does not, without more, amount to persecution” and scolded that “unlike a jury an administrative agen*503cy has to provide a reasoned justification for its rulings.” Id. at 573-74 (emphasis added).
The government also argues that its position was substantially justified because our disagreement with the Board over Hade’s ability to reclaim his citizenship stemmed from unclear evidence in the record. Some of the record evidence was open to multiple interpretations, but much of the evidence was unsettled because the Board ducked its responsibility to try to resolve important issues, like the status of a minor who is an Ethiopian citizen by virtue of his parents’ citizenship when the parents renounce their citizenship. Id. at 574. And for some of the evidence on which we split with the Board, such as the applicability of the 2003 proclamation, the Board’s view is not just different but also arguably unreasonable. The Board and the government assumed that Haile would at least be eligible to be considered for citizenship under the 2003 readmission law, but, as we pointed out, by its terms the law only applies to former Ethiopian nationals who acquired foreign nationality, and Haile did not. Id. at 575.
Finally, the government emphasizes that in Haile I we did not find fault with the IJ’s determinations that Haile did not suffer individual persecution or have a well-founded fear of future persecution, and in Haile II we did not address Haile’s argument that the Board erred by failing to address his humanitarian asylum claim, and so, the government contends, these aspects of its position were substantially justified. Those findings were not the central focus of the litigation. In Gatimi we denied a motion for attorneys’ fees and costs, despite determining that the government’s position was substantially justified with respect to only one of the two issues in the case, because the government’s position was substantially justified for the “more prominent issue.” 606 F.3d at 350. Here, by contrast, the most prominent issue was whether being made stateless is persecution, so our stated or silent agreement with the government on other questions does not carry much weight in the substantial-justification calculus.
We are unpersuaded by the government’s arguments that its position was substantially justified. It is also worth recalling that at oral argument for Haile 11 the government’s lawyer took the position that it would not have been persecution for the United States to strip Muslim citizens of their citizenship post-9/11 if they were allowed to remain in the U.S. We expressed skepticism that this was actually the Board’s position, 591 F.3d at 574, but it was not far removed from the “denationalization plus” rule articulated by the Board on remand. In light of the lack of substantial justification for the government’s position, Haile should be awarded attorneys’ fees and costs under the EAJA.
Although we agree with Haile that he deserves an award, he is not entitled to an award in the amount he requests. Haile is asking for $46,527.50, of which $43,349.34 is attorneys’ fees and $3,178.16 is costs. We reject the government’s argument that Haile should not receive a cost-of-living increase beyond the $125 statutory hourly rate for attorneys’ fees. Haile’s attorneys have justified their requested increase by submitting extensive documentation of standard billing rates and their experience and qualifications.’ See Muhur v. Ashcroft, 382 F.3d 653, 656 (7th Cir.2004). We also disagree that the hours billed include duplicative work. See Tchemkou v. Mukasey, 517 F.3d 506, 511-12 (7th Cir.2008) (“The practice of law often, indeed usually, involves significant periods of consultation among counsel.”). The government further argues that Haile is improperly requesting reimbursement for “nonlegal work,” but the tasks the *504government objects to, though somewhat menial, still involve the exercise of legal judgment.
The government is correct, however, that Haile is seeking costs for which he has largely already been paid and at rates in excess of what is permitted. Haile has deducted from his total requested costs the $1,604.60 that he received as a result of the bill of costs that he timely submitted following the resolution of his petition, but the invoice that he has attached to justify $4,000.26 in “brief/appendix charges” is the same invoice that he submitted with the bill of costs and for which he was reimbursed already. In his bill of costs he recalculated the amounts charged so that they were in line with the accepted rates, i.e., $0.10 per page for copies instead of $0.25, but now he has submitted the invoice as is. Haile also requests $450 in “docketing fees,” but his bill of costs award included those fees. Haile cannot recover twice for the same expenses. He is also seeking “other printing/copying expenses” in the amount of $212.50, which represents 850 pages at the unacceptable rate of $0.25 per page. We reduce this amount to $85, which reimburses him at the $0.10 per page rate established by the clerk of the court.
For the reasons set forth above, we grant Haile’s motion for fees and costs. The government shall reimburse Haile for $43,349.34 in attorneys’ fees and $205 in costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480146/ | ORDER
Ruben Hughes is serving life imprisonment on his convictions for trafficking crack cocaine, see 21 U.S.C. §§ 846, 841(a)(1), and possession of a firearm by a felon, see 18 U.S.C. § 922(g). On direct appeal we upheld the convictions and sentences on four of six counts. See United States v. Hughes, 213 F.3d 323, 335-36 (7th Cir.), vacated, 531 U.S. 975, 121 S.Ct. 423, 148 L.Ed.2d 432 (2000), reinstated in part, 5 Fed.Appx. 507 (7th Cir.2001). In 2008 Hughes moved for a reduced sentence under 18 U.S.C. § 3582(c)(2), invoking recent amendments to the sentencing guidelines. The district court found him ineligible for resentencing and denied the motion. We affirm the judgment.
The details of Hughes’s drug trafficking are recounted in our previous decisions. See Hughes, 5 Fed.Appx. at 510-11; Hughes, 213 F.3d at 326-28. For this appeal it is sufficient to note that, at trial, one member of Hughes’s drug organization testified to cooking somewhere between six and ten kilograms of crack for Hughes in the summer of 1996, and another witness estimated that he had packaged and sold more than five kilograms of crack for Hughes during the first six months of the following year. The district court credited this testimony at sentencing and held Hughes responsible for distributing at least 1.5 kilograms of crack (which, at the time, was enough to trigger a base offense level of 38, the highest under U.S.S.G. § 2D1.1). When the court denied Hughes’s motion for a reduced sentence, the court again relied on this testimony to conclude that Hughes was responsible for distributing, not just 1.5 kilograms, but at least 4.5 kilograms of crack (which under the amended version of § 2D1.1, is the quantity necessary to trigger a base offense level of 38).
On appeal Hughes argues, as he did in the district court, that three amendments to the guidelines apply to him and thus he was eligible for a reduced sentence under § 3582(c). That statutory provision allows a defendant to seek a reduction if the sentence was based on a guidelines range that has subsequently been lowered by a retroactive amendment. See U.S.S.G. § 1B1.10(a)(1) (policy statement); Dillon v. United States, — U.S. —, 130 S.Ct. 2683, 2686-87, 177 L.Ed.2d 271 (2010); United States v. Lawrence, 535 F.3d 631, 634 (7th Cir.2008).
Hughes first argues that he was eligible to seek a reduction based on Amendment 706. That amendment retroactively reduced the base offense levels for most crack offenses and, as noted, increased the quantity of crack corresponding to the highest level from 1.5 to 4.5 kilograms. See U.S.S.G. §§ lB1.10(c), 2Dl.l(c); U.S.S.G. supp. to app. C, 226-31 (2009) (Amendment 706); United States v. Hall, *511582 F.3d 816, 817 (7th Cir.2009). Hughes asserts that at sentencing he was found responsible for distributing only 1.5 kilograms of crack and so, in denying his § 3582(c) motion, the district court necessarily conducted impermissible factfinding to hold him responsible for a higher amount. Had the district court relied on its original finding, Hughes maintains, his base offense level would have dropped by two levels after Amendment 706. But the district court’s conclusion regarding the quantity of crack attributable to Hughes resulted from a proper examination of the entire record that was available at his original sentencing. See United States v. Davis, 587 F.3d 1300, 1304 (11th Cir.2009); United States v. Woods, 581 F.3d 531, 538-39 (7th Cir.2009); United States v. Forman, 553 F.3d 585, 590 (7th Cir.2009). Two witnesses testified to handling at least five and six kilograms respectively, and the district reasonably relied on this evidence to conclude that Hughes was responsible for distributing at least 11 kilograms. And having found that Hughes had exceeded the 4.5 kilogram threshold, the district court correctly determined that he could not benefit from Amendment 706. See Woods, 581 F.3d at 538; United States v. Harris, 567 F.3d 846, 855 (7th Cir.2009); Forman, 553 F.3d at 590.
Hughes also challenges the district court’s conclusion that he was ineligible for a sentence reduction based on Amendments 599 and 709. Amendment 599 relates to convictions under 18 U.S.C. § 924(c)(1), so it has no relevance to Hughes. See United States v. Howard, 352 F.3d 332, 337-38 (7th Cir.2003). And Amendment 709, which concerns how to count prior convictions in calculating a defendant’s criminal history category, see U.S.S.G. supp. to app. C, 235-41 (2009) (Amendment 709); United States v. Alexander, 553 F.3d 591, 592 (7th Cir.2009), is not retroactive, see U.S.S.G. § lB1.10(c); Alexander, 553 F.3d at 592.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480606/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Francis Akinro appeals the district court’s order dismissing his civil complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Akinro v. Hecida Hotel, No. 1:10-cv01452-RDB (D. Md. June 7, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480147/ | ORDER
Ron Haddad, Jr., brought a federal lawsuit against the River Forest Police Department, the Village of River Forest, and Whole Foods Market, Inc. His claims are difficult to understand; in disjointed fashion, he alleged that the River Forest police failed to respond to threatening phone calls he received; that River Forest improperly increased local taxes; and that the local Whole Foods store banned him from the premises. The district court dismissed the suit sua sponte on grounds that it could not discern a federal claim from Haddad’s complaint.
On appeal, Haddad asserts that the district court did not substantiate its ruling. But the court explained that it dismissed his amended complaint for failing to allege a federal claim. Haddad devotes much of his lengthy appellate brief to narrating allegations similar to those from his amended complaint, but he does not attempt to identify any federal claims. Even applying the liberal standards applicable in pro se cases, see Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam), we cannot ascertain a cogent argument in Haddad’s brief and agree with the district court that the complaint failed to state a claim under federal law, see Williams v. Aztar Ind. Gaming Corp., 351 F.3d 294, 298 (7th Cir.2003); Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir.2001).
Haddad also obliquely urges for the first time that the defendants’ “hypocritical corruption” violated his Fourteenth Amendment right to due process and equal protection, but issues raised for the first time on appeal are waived. See County of McHenry v. Ins. Co. of the West, 438 F.3d 813, 819-20 (7th Cir.2006).
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480148/ | ORDER
Tyrone Smith, an inmate at the Milwaukee Secure Detention Facility, claimed that prison officials denied him access to the courts when they lost a petition he wanted to file in state court and then retaliated against him when he tried to file it. See 42 U.S.C. § 1983. The district court granted summary judgment against him and we affirm.
Smith’s § 1983 suit against prison staff alleged that they denied him access to the courts by, among other things, negligently losing a petition for a writ of certiorari he wanted to file in state court in order to challenge the revocation of his supervised release. Smith alleged that he placed his petition in the prison mail, through which it would be routed first to the prison’s business office (so that necessary documentation could be obtained to verify his indigent status). From there it was to be forwarded to the prison’s mailroom and then sent on to the state court. Less than a month later, however, Smith received a letter from the court stating that documents relating to his petition had been received, but not the petition itself. That discovery led Smith to file an offender complaint with the prison. The complaint was handled by an inmate complaint examiner who investigated the matter and concluded that Smith’s petition was never sent because it was lost at some point between the business office and the mailroom. Smith was able to obtain an extension of time from the state court and he eventually filed his petition.
His federal complaint, however, was screened under 28 U.S.C. § 1915A(c) by the district judge. The judge dismissed Smith’s claims of lost mail and denial of access to the courts, construing these claims generally as one of negligence, which was not actionable under 42 U.S.C. § 1983. Smith v. Husz, No. 07-C-823, 2007 WL 4560598, at *4 (E.D.Wis. Dec. 19, 2007). In reference to Smith’s allegation of denial of access to courts, the judge noted that Smith had not alleged that the delay prejudiced his petition in any way. Id. But the judge did find that one of Smith’s accompanying submissions, a motion to amend the complaint, stated a potential claim for retaliation; the judge *515invited him to amend his complaint accordingly. Smith did so and amended his complaint to allege that the prison staff retaliated — or conspired to retaliate— against him for trying to file his state petition. Although he did not elaborate on the underlying basis for the retaliation, he alleged that a “unit manager” refused to notarize a document pertaining to his petition; that his petition was intentionally held up for 8 months among the mail-room officers, the business office’s supervisor, and a business-office specialist; and that the prison warden and the Secretary of Wisconsin’s Department of Corrections denied internal complaints he had filed over the matter.
After further proceedings, a magistrate judge, presiding with the parties’ consent, see 28 U.S.C. § 636(c), granted the defendants’ motion for summary judgment. The judge first concluded that certain defendants had no personal involvement in the alleged retaliation: The business office supervisor did not personally process Smith’s mail requests, and the Secretary and the warden had no personal involvement beyond their limited roles in the grievance process. Smith v. Husz, No. 07-CV-823, 2009 WL 2568209, at *9 (E.D.Wis. Aug.14, 2009). Regarding the remaining prison staff, the magistrate judge concluded that the plaintiff failed to show that these defendants acted with a retaliatory motive; the judge noted for instance that the mailroom officers lacked knowledge of the petition and that the prison staff followed standard prison operating procedures in denying his notary request. Id. at *10-*11.
On appeal Smith first argues that the district judge erred when he screened the complaint and concluded, in regard to the aecess-to-court claim, that Smith was not prejudiced by the 8-month delay in the filing of his state petition. His argument is difficult to follow, but he seems to suggest that he was not required to show prejudice or any actual injury to his petition. But the right of access to the courts is violated only when a prisoner is denied access and suffers actual injury as a result. Lewis v. Casey, 518 U.S. 343, 350, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); see also Ortiz v. Downey, 561 F.3d 664, 671 (7th Cir.2009); Bridges v. Gilbert, 557 F.3d 541, 553 (7th Cir.2009). And Smith alleged no actual injury. He was required to allege how the delay prejudiced his ability to pursue a legitimate challenge to a conviction or sentence, see Marshall v. Knight, 445 F.3d 965, 968 (7th Cir.2006), and this he did not do.
Smith also takes issue with the magistrate judge’s grant of summary judgment on his retaliation claim. We understand Smith to argue that the magistrate judge erred when he granted summary judgment for the warden, Secretary, and business-office supervisor because no evidence showed that they were personally involved. Smith suggests that he did not have to show personal involvement because the prison was responsible for his mail and that this responsibility — by extension — accrued to the prison’s employees. But § 1983 does not allow actions against persons merely because of their supervisory roles, T.E. v. Grindle, 599 F.3d 583, 588 (7th Cir.2010); Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir.2003), and Smith has not otherwise shown that these defendants were personally involved in any retaliation against him. See Minix v. Canarecci, 597 F.3d 824, 833-34 (7th Cir.2010); Sides v. City of Champaign, 496 F.3d 820, 827 (7th Cir.2007).
Last, Smith argues that the magistrate judge erroneously required him to support his retaliation claim by showing that the defendants acted with a retaliatory motive. But to establish a prima facie case for retaliation, Smith had to show that the *516filing of his petition was at least a motivating factor behind the retaliatory action. See, e.g., Bridges, 557 F.3d at 546; Kiddy-Brown v. Blagojevich, 408 F.3d 346, 357 (7th Cir.2005). He did not do so. Nor does he contest the defendants’ denial of harboring retaliatory motive; he points to no evidence to dispute the defendants’ assertions that they were unaware of his petition or that they were adhering to standard prison operating procedures.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480150/ | ORDER
An immigration officer questioned San-dro Segura-Felipe over the phone while he was detained in the Kane County Jail for another offense. In that conversation, Segura said that he was from Mexico and had entered the United States unlawfully. Based on his admissions, the government issued a notice to appear, and an immigration judge ordered him removed. On appeal he raises several procedural challenges, including an argument that the questioning that led to his admissions violated a constitutional right to counsel. We deny the petition for review.
Segura is a Mexican citizen who entered the United States without inspection. In 2008 he was pulled over for a traffic violation. As a result of the ensuing search, he was convicted of possessing fraudulent identification. While he was in the Kane County Jail, immigration officials asked him about his status and documented their findings in a Form 1213,1 known as a “record of deportable alien.” Soon thereafter *521the Department of Homeland Security issued a notice to appear charging him as removable for being present without admission or parole, see 8 U.S.C. § 1182(a)(6)(A)(i), and for being convicted of a crime (possessing fraudulent identification) involving moral turpitude, see id. § 1182(a)(2)(A)(i)(I).
At his initial hearing before an immigration judge, Segura, through his attorney, asserted that he had not been properly served with the notice to appear. He had been served twice, but puzzlingly, he denied having a copy of the notice. To dispel any confusion, the IJ asked the government to serve him with an additional copy in court. The charges were also read aloud during the hearing, and translated for him into Spanish by an interpreter. The IJ asked Segura a few questions about his wife, a Mexican citizen, and his U.S.born children. The IJ ended the hearing by granting a continuance for nearly four months, so that Segura could discuss his options with his attorney.
At the second hearing, counsel filed a motion to terminate the case for improper service, arguing that Segura had been served with two different notices to appear that listed separate charges. But the two notices — copies of which he attached to the motion — were worded identically. After submitting the motion, counsel sought another continuance to file a supporting brief. The IJ responded that he was not going to continue the case beyond that day, noting that Segura had already been served with the notice to appear three separate times, the last time even in court. The IJ went on to say that he did not see any reason why the hearing could not be resumed and the issue resolved by asking Segura about the notices he received.
Since Segura did not admit being removable, the government sought to prove re-movability by submitting an 1-213 Form. The form states that Segura is a Mexican citizen, entered the United States without being admitted in 2003, and was convicted of possessing fraudulent identification in 2008. Segura’s attorney objected to the form, though, contending that it was based on information the government obtained by denying Segura his right to counsel. Segura then testified that he did not realize that the persons who interviewed him over the phone were immigration officers. Segura added that when he was served no one explained the notice to appear to him in Spanish. When the government tried to question him further, for the most part he refused to answer, saying that he was asserting his Fifth Amendment right against self-incrimination. He did, however, concede that he was not a United States citizen, and that he had entered the country without being admitted. Ultimately, the IJ admitted the Form 1-213, explaining that he did not have a right to counsel at the time he was served or even before.
Based on the information in the Form I-213, the IJ concluded that Segura was removable on both charges: for being present without admission, and for being convicted of a crime of moral turpitude. The IJ also found that he failed to meet his burden of showing that he was eligible for voluntary departure. As the IJ noted during the hearing, Segura’s counsel did not present an argument for voluntary departure, and Segura, when asked, refused to say whether he was willing to leave voluntarily.
The Board of Immigration Appeals dismissed Segura’s appeal, though it did conclude that the IJ erred in one respect. The Board agreed with Segura’s argument — which, so far as we can tell, he did not raise before the IJ — that it was improper to use the Form 1-213 to establish his criminal conviction, because that form is not specified in the statute as one of the forms admissible to prove a conviction. So *522the Board overturned the finding of re-movability based on the conviction, but it did not remand because it deemed the I-213 sufficient to prove the other charge, that Segura was present in the country without being admitted. It rejected his argument that the statements in the 1-213 were taken in violation of his rights, and it was also unpersuaded that service was faulty. Finally, it found no error in the IJ’s refusal to continue the hearing. Segu-ra petitioned for review.
Segura first argues that the IJ erred in denying his motion for a continuance. He contends that the IJ did not sufficiently explain his reasons for denying the motion, going so far as to suggest that the IJ denied the motion based not on the merits but on a crowded docket. He also argues that he showed good cause for the continuance because he wanted to investigate whether the traffic stop that led to his conviction was based on racial profiling.
An IJ has the discretion to grant a continuance for “good cause shown,” see 8 C.F.R. § 1003.29; Juarez v. Holder, 599 F.3d 560, 564-65 (7th Cir.2010), and must provide an appropriate reason if he denies the motion. Subhan v. Ashcroft, 383 F.3d 591, 595 (7th Cir.2004). The IJ provided an appropriate reason here: he explained that he would not continue the case to allow for briefing of an issue that could be addressed at the healing, that is, whether Segura was properly served with a notice to appear. Contrary to Segura’s argument, the IJ said nothing to suggest that he was denying the motion based on a crowded docket. And as for Segura’s theory about racial profiling, he never presented that argument to the IJ, so the IJ could not have responded to it; thus, the argument is waived. See Ghani v. Holder, 557 F.3d 836, 839 (7th Cir.2009).
Segura next contends that when immigration officials first questioned him over the phone, without his attorney present, they violated a constitutional right to counsel. He equates this right with a criminal defendant’s right to counsel. And because of this violation, he continues, the admissions he made to the officials, which were recorded in the Form 1-213, should have been excluded from evidence.
Segura’s conception of his right to counsel is not quite accurate, though. Although he recognizes that any right to counsel he had arises under the Fifth Amendment rather than the Sixth, he does not acknowledge that the protection the two amendments provide is different. It is; an alien receives less protection than a criminal defendant because a removal proceeding is civil rather than criminal. INS v. Lopez-Mendoza, 468 U.S. 1032, 1038-39, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984); Flores v. Ashcroft, 350 F.3d 666, 669 (7th Cir.2003). To the extent that there is a constitutional right to counsel in an immigration proceeding, it arises under the Fifth Amendment’s right to due process. See Stroe v. INS, 256 F.3d 498, 500-01 (7th Cir.2001); Ambati v. Reno, 233 F.3d 1054, 1061 (7th Cir.2000); see also Lopez-Mendoza, 468 U.S. at 1038-39, 104 S.Ct. 3479 (no Sixth Amendment right to counsel in removal proceedings); Debeatham v. Holder, 602 F.3d 481, 485 (2d Cir.2010). But to establish a due process violation, the alien would need to show prejudice, that is, that the evidence to which he objects is inaccurate or that its absence might result in a different outcome. Ramos v. Gonzales, 414 F.3d 800, 805 (7th Cir.2005); Kuschchak v. Ashcroft, 366 F.3d 597, 601 (7th Cir.2004). Segura has neither addressed the issue of prejudice nor challenged the facts presented in the I-213. It is hard to see how he could, since at his hearing he admitted the facts in the I-213 that were necessary to support the removal order: that he was not a United States citizen and that he was not admitted or paroled into the United States. See Ramos, 414 F.3d at 805.
*523Next, Segura challenges the Board’s conclusion that he received adequate notice of the charges against him, as is required by 8 U.S.C. § 1229(a)(1). He first contends that he received two different notices to appear, specifying different charges. This argument is puzzling, though, because all of the copies of the notice that appear in the record, including the two attached to his motion to terminate, contain the same two charges. At oral argument he represented that yet another notice stated only one of the charges, but he acknowledged that this notice is not in the agency record. Segura also asserts that no one used Spanish to explain the notice to appear to him, even though he was served three times. But again, the record belies this argument: as the government points out, each certificate of service says that Segura was given oral notice in “Spanish/English.” Furthermore, it is not clear why oral notice in one’s native language would be required: the statute he cites does not require it, see 8 U.S.C. § 1229(a)(1), nor does due process, Nazarova v. INS, 171 F.3d 478, 483 (7th Cir.1999).
Finally, Segura challenges Board’s denial of voluntary departure. But we lack jurisdiction to review a denial of voluntary departure. See 8 U.S.C. § 1229c(f); 8 U.S.C. § 1252(a)(2)(B)(i); Singh v. Gonzales, 487 F.3d 1056, 1057 (7th Cir.2007); Sofinet v. INS, 196 F.3d 742, 748 (7th Cir.1999).
Accordingly, the petition for review is DENIED.
. 1-213 forms are routinely accepted as evidence in immigration proceedings, unless the information contained in them is "manifestly incorrect or was obtained by duress." Barradas v. Holder, 582 F.3d 754, 763 (7th Cir.2009). Segura does not argue that the information was manifestly incorrect or that he was subject to duress. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480151/ | MEMORANDUM **
Hugo Mendez-Torres appeals from the nine-month sentence imposed following revocation of supervised release. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Mendez-Torres’ counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480152/ | MEMORANDUM **
David Webb appeals pro se from the district court’s judgment dismissing his action arising from his purchase of a used vehicle. We have jurisdiction under 28 *609U.S.C. § 1291. We review de novo. Peralta v. Hispanic Bus., Inc., 419 F.3d 1064, 1068 (9th Cir.2005). We affirm the dismissal of each defendant because the district court lacked subject matter jurisdiction.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480155/ | MEMORANDUM **
California state prisoner Kelvin Patterson appeals pro se from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction under 28 U.S.C. § 2253,1 and we affirm.
Patterson contends that the Board’s 2004 decision to deny him parole was not supported by “some evidence” and therefore violated his due process rights. The state court did not unreasonably conclude that some evidence supports the Board’s decision. See 28 U.S.C. § 2254(d); see also Hayward v. Marshall, 603 F.3d 546, 562-64, 568-69 (9th Cir.2010).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. We certify for appeal, on our own motion, the issue of whether the 2004 decision of the California Board of Prison Terms ("the Board") to deny parole violated due process. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480157/ | *996ON PETITION FOR WRIT OF MANDAMUS
ORDER
Smith & Nephew, Inc. submit a letter indicating that the United States District Court for the Eastern District of Texas transferred the underlying case on July 6, 2010 and suggesting that them petition for a writ of mandamus is thus moot.
Upon consideration thereof,
It Is Ordered That-.
(1) The petition for a writ of mandamus is dismissed as moot.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480159/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief and appendix filed by appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(3). It is
ORDERED AND ADJUDGED that the district court’s order filed January 20, 2010, dismissing appellant’s frivolous complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), be affirmed. See Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). The factual contentions alleged by appellant are clearly baseless. See id.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480160/ | OPINION
PER CURIAM.
Appellant, Surf Moore, proceeding pro se, appeals from the District Court’s dismissal of his complaint as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B). For the reasons stated herein, we will summarily vacate and remand.
In September 2009, Moore filed a complaint in the United States District Court for the District of New Jersey challenging a fine imposed under New Jersey law. Although the complaint is vague and confusing, it appears that Moore alleged a due process violation in response to an arrest following his failure to pay a fine. However, Moore provided the court with only these minimal facts in his complaint and cited verbatim 28 U.S.C. § 1343, 28 U.S.C. § 2462, the Fourteenth Amendment, and the Fifth Amendment. Before directly quoting each of the above-mentioned statutes and constitutional amendments, Moore asserted two major claims: 1) the New Jersey statute is vague and uncertain; and 2) the New Jersey statute is in conflict with a federal statute. The District Court dismissed the complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B) for the following reasons: 1) Moore failed to provide a “short and plain statement of the claim showing that the pleader is entitled to relief’ in accordance with Fed. R. Civ. P. 8(a)(2); and 2) he failed to state “sufficient factual matter” to show that any potential claims are facially plausible. See Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937, 1948-49, 173 L.Ed.2d 868 (2009). Moore filed a timely notice of appeal.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Because Moore has been granted in forma pauperis status pursuant to 28 U.S.C. § 1915, we *67review this appeal for possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). An appeal must be dismissed under § 1915(e)(2)(B) if it has no arguable basis in law or fact. See Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). We may take summary action on an appeal if it presents no substantial question. See 3d Cir. LAR 27.4.
When the District Court dismisses a complaint for failure to state a claim under 28 U.S.C. § 1915(e)(2), the District Court must allow the litigant leave to amend his complaint unless any amendment would be inequitable or futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 106 (3d Cir.2002). Here, the District Court correctly concluded that Moore’s complaint failed to state a claim, but it failed to offer Moore an opportunity to file an amended complaint in order to clarify his allegations. See id.; see also Phillips v. County of Allegheny, 515 F.3d 224, 231-36 (3d Cir.2008) (clarifying that the pleading standards under Rules 8 & 12(b)(6) require that the District Court must give a plaintiff the opportunity to amend her complaint prior to dismissal, unless amendment would be futile). While we agree that Moore’s pleadings failed to establish sufficient factual background to ascertain whether a basis for the claims exist, an amended complaint providing additional details may reveal information that will allow the court to determine a basis for Moore’s claims. We therefore conclude that, without a finding of futility, the District Court should uphold its obligation to allow Moore to file an amended complaint.
Accordingly, because there is no substantial question presented, we will summarily vacate and remand this appeal with instructions to the District Court to grant Moore leave to amend his complaint. See 3d Cir. LAR 27.4 & I.O.P. 10.6. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480161/ | OPINION OF THE COURT
HARDIMAN, Circuit Judge.
Pursuant to a written agreement, Ra-shon Alexander pleaded guilty to one count of possessing a firearm after being convicted of a felony, in violation of 18 U.S.C. § 922(g)(1), and was sentenced to 84 months imprisonment. Alexander appeals his judgment of sentence, contending that the District Court incorrectly computed his criminal history category and imposed a procedurally and substantively unreasonable sentence. We will affirm.
I.
Because we write for the parties, we recount only the essential facts and procedural history.
Consistent with the United States Sentencing Guidelines (USSG), the District Court calculated Alexander’s offense level as 21 and his criminal history category as VI, which yielded an advisory Guidelines range of 77 to 96 months imprisonment.1 On appeal, Alexander claims his criminal history category calculation was incorrect *78because the District Court did not group together his three prior sentences for possessing a controlled dangerous substance within 1000 feet of school property, in violation of New Jersey law. The District Court assigned three criminal history points to each of these offenses, which accounted for nine of Alexander’s 17 criminal history points.
According to USSG § 4A1.2(a)(2), in computing a defendant’s criminal history, “[p]rior sentences imposed in related cases are to be treated as one sentence.” Application Note 3 to § 4A1.2 elaborates further:
Prior sentences are not considered related if they were for offenses that were separated by an intervening arrest (ie., the defendant is arrested for the first offense prior to committing the second offense). Otherwise, prior sentences are considered related if they resulted from offenses that (A) occurred on the same occasion, (B) were part of a single common scheme or plan, or (C) were consolidated for trial or sentencing.
In support of his argument that his three possession sentences should have been grouped as one, Alexander notes that he received a single sentence for all three offenses. Had the District Court grouped Alexander’s offenses, it would have reduced his criminal history score to 11, and his criminal history category to V, which would have resulted in an advisory sentencing range of 70 to 87 months. We review de novo the District Court’s interpretations of the Sentencing Guidelines, United States v. Pojilenko, 416 F.3d 243, 246 (3d Cir.2005), but review the District Court’s findings of fact only for clear error, United States v. Wise, 515 F.3d 207, 217 (3d Cir.2008).
Alexander’s argument fails because, as the District Court found, his three possession offenses were separated by intervening arrests. Alexander committed the first possession offense on January 4, 2000, and was arrested that same day. He was released on bond, but committed the same offense the next day, January 5, and was re-arrested. After being released a second time, he committed the third offense on March 21, 2000. Thus Alexander plainly was “arrested for the first offense prior to committing the second offense,” and for the second offense before committing the third. Under Application Note 3, the District Court was not permitted to treat these consolidated sentences as “related.” Accordingly, the District Court committed no error when it decided not to group these three offenses.
II.
Alexander also claims his sentence was procedurally and substantively unreasonable, arguing that the District Court erred by: (1) failing to consider his mitigating circumstances and the factors enumerated in 18 U.S.C. § 3553(a); and (2) refusing to reduce his sentence to reflect those circumstances and factors. As the Government points out, however, Alexander is precluded from raising these arguments by the appellate waiver in his plea agreement. We have previously stated:
We will decline to exercise our jurisdiction to review the merits of [a defendant’s] appeal if we conclude (1) that the issues he pursues on appeal fall within the scope of his appellate waiver and (2) that he knowingly and voluntarily agreed to the appellate waiver, unless (3) enforcing the waiver would work a miscarriage of justice.
United States v. Corso, 549 F.3d 921, 927 (3d Cir.2008). Here, Alexander “agree[d] that a sentence within the Guidelines range that results from the agreed total Guidelines offense level of 21 is reason*79able,” and “voluntarily waive[d] ... the right to file any appeal ... which challenges the sentence imposed by the sentencing court if that sentence falls within or below the Guidelines range that results from the agreed total Guidelines offense level of 21.”2 Because the District Court found that Alexander’s offense level was 21 and sentenced him within the resulting Guidelines range, Alexander’s attack on the reasonableness of that sentence falls squarely within the appellate waiver. Alexander attempts neither to impugn the voluntariness of his waiver nor to argue that its enforcement would result in a miscarriage of justice. Accordingly, we will not exercise jurisdiction over this aspect of Alexander’s appeal.
For the foregoing reasons, we will affirm Alexander’s judgment of sentence.
. Alexander claims the District Court erred by not using the 2006 version of the Guidelines, which was current at the time of his offense. Because we reach the same conclusion regardless of which version of the Guidelines is *78sed, we will assume, arguendo, that Alexander is correct in this regard.
. The plea agreement does not bar Alexander’s challenge to the District Court's calculation of his criminal history category, because both parties expressly reserved the right to appeal that determination. The plea agreement is clear, however, that once Alexander’s criminal history category is determined, he may not appeal his sentence if it falls within the range dictated by that category and an offense level of 21. The District Court fully explained this to Alexander at his plea hearing. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480162/ | OPINION OF THE COURT
PER CURIAM.
In this civil rights action, John Paul Gomez, a pro se litigant, appeals from the District Court’s order granting the defendants’ motion for summary judgment. For the reasons that follow, we will affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.
I.
Because we write solely for the benefit of the parties, we will only briefly summarize the essential facts. Gomez appeals from an order granting summary judgment; thus, we construe all facts in the light most favorable to him as the non-moving party. See Groman v. Twp. of Manalapan, 47 F.3d 628, 633 (3d Cir.1995).
In the evening of March 26, 2007, Officer James Markley pulled over Gomez’s car. Officer Markely informed Gomez that the car did not have the requisite inspection stickers. Gomez provided Officer Markley with his license, registration, and *81insurance information. After briefly returning to his patrol car, Officer Markley informed Gomez that his license was suspended and that his registration was expired. Gomez explained why he lacked an inspection sticker and why his registration was expired, and informed Officer Markley that he did not believe his license was suspended because he had not received notice of a suspension. Officer Markley then asked where Gomez lived, and Gomez explained that the address listed on his driver’s license was different from his current address because he had, moved and had not yet updated his address at the Department of Motor Vehicles (“DMV”).
At this point, Gomez stated that Officer Markley “abruptly” ordered him to exit the vehicle and place his hands on top of the car. Officer Markley then put on gloves and searched Gomez’s person. During the search, Officer Markley asked Gomez if he had anything he wanted to disclose before his vehicle was searched. Gomez objected to a search of his ear, and Officer Markley responded with cursing. Officer Markley then went back to his patrol car.
When he returned, Officer Markley ordered Gomez out of the car again and asked him to consent to a search of the car. Gomez claimed that he became concerned and nervous about Markley’s intentions at this time and refused to consent to a search of his car. Gomez averred that he attempted to call a friend to ask if he would come act as a witness because he was concerned about Officer Markley’s behavior. Officer Markley then ordered Gomez not to put his hands in his pockets and threatened to charge anyone who came to assist him with obstruction of justice. After a neighbor walked by, Officer Markley began to search Gomez’s vehicle, first looking underneath the driver’s seat and the carpet. According to Gomez, Officer Markley made racially charged statements about a recent crime in the neighborhood. Officer Markley then ordered Gomez to step back from the car and searched the glove compartment and the backseat, removing two bottles of Visine eye drops. Officer Markley insinuated he had found drugs in the car, but would not show Gomez what he found, despite Gomez’s inquiries. Notably, in an affidavit submitted in support of the defendants’ motion for summary judgment, Officer Markley claimed that he had observed a marijuana seed in plain view on the driver’s seat.
Next, Gomez stated that he told Officer Markley he was making an audio recording of the traffic stop, and Officer Markley became upset. Officer Markley then informed Gomez that he had to do an inventory of the car. At this point, another officer arrived on the scene. According to Gomez, the search had been ongoing for approximately one hour at this point.
Officer Markley then began searching the car again, and after informing Gomez that his car would be impounded, handed him an inventory form to sign. Gomez signed the form. Gomez stated that the drug and the inventory searches took a total of two hours. The car was towed, and Gomez claimed that the car was damaged by the towing. He received three traffic citations in the mail. Gomez was found guilty of driving an unregistered vehicle and operating a vehicle without a valid inspection, but the Magisterial District Judge dismissed the charges alleging that Gomez had been driving with a suspended license.
II.
Gomez commenced an action under 42 U.S.C. § 1983, alleging a violation of his Fourth Amendment rights, as well as state law claims for defamation, invasion of privacy, and intentional infliction of emotional *82distress (IIED). He named as defendants Officer James Markley and the Midway Borough Police Department. The parties filed cross-motions for summary judgment. The District Court granted the defendants’ motion, denied Gomez’s motion, and dismissed all claims with prejudice. Gomez timely appealed.
III.
We have appellate jurisdiction to review the judgment, and our review is plenary. See 28 U.S.C. § 1291; Atkinson v. LaFayette Coll., 460 F.3d 447, 451 (3d Cir.2006). Summary judgment is appropriate only if, after the evidence taken as a whole is construed in the light most favorable to the non-moving party, there remains no genuine issue of material fact. See Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 286 (3d Cir.2009). To survive a motion for summary judgment, the non-moving party must present “more than a scintilla of evidence showing that there is a genuine issue for trial.” Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir.2005).
IV.
The District Court determined that three searches occurred: (1) when Gomez was removed from his vehicle and searched for weapons; (2) when Officer Markley searched the vehicle for drugs and/or contraband; and (3) when Gomez’s car was inventory searched after he was unable to make arrangements for its removal and it had to be taken into police custody. We are concerned here primarily with the second search.1
The Fourth Amendment guards against unlawful searches and seizures. The touchstone of Fourth Amendment analysis is “the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.” Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Thus, a police officer is permitted to conduct a protective search for weapons to take reasonable steps to ensure his own or others’ safety. Id. Extending this jurisprudence to automobile searches, if a vehicle is lawfully stopped for a traffic violation, a police officer may order a driver to exit the vehicle. Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). If the officer has a reasonable belief based on specific and articulable facts that a suspect may be armed and dangerous, and may gain immediate control of a weapon, the officer may search the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden. Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).
If there is probable cause to believe a vehicle contains evidence of criminal activity, an officer may search any area of the vehicle in which evidence might be found. United States v. Ross, 456 U.S. 798, 820-21, 824, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); see also United States v. Burton, 288 F.3d 91, 100 (3d Cir.2002). Probable cause requires “a fair probability *83that contraband or evidence of a crime will be found in a particular place,” and is based on the “totality of the circumstances” available at the time of the search. Illinois v. Gates, 462 U.S. 213, 230, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). “Probable cause exists where the facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a reasonable person to believe an offense had been committed.” See United States v. McGlory, 968 F.2d 309, 342 (3d Cir.1992).
In granting summary judgment, the District Court observed that the following facts were known to Officer Markley when he performed the second search:
1) Gomez was driving an unregistered vehicle without inspection stickers, and he was driving with a suspended license.
2) Gomez provided conflicting information about where he was from and/or where he lived.
3) Gomez exhibited signs of extreme nervousness and kept placing his hands in his pockets.
4) Gomez had bloodshot eyes.
5) There appeared to be a marijuana seed in plain view on the driver’s seat of Gomez’s car.
Several of these facts are disputed. Gomez asserted that he explained to Officer Markley that his driver’s license did not reflect his current address because he had moved and had not updated his address at the DMV. Gomez also denied that he had bloodshot eyes. Most significantly, Gomez denied that there was any marijuana in the car and testified that Officer Markley never informed him that he saw a marijuana seed in the car. Officer Markley did not retain the seed he claims to have seen before he commenced his search.
Thus, if we accept the facts in the light most favorable to Gomez, we would consider that Officer Markley reasonably believed that Gomez was operating a vehicle with an expired registration and without inspection stickers and was driving with a suspended license. Furthermore Gomez had explained that the address on his license was outdated. These facts do not support a finding of probable cause to search the car. Even if we were to also accept that, at some point, Gomez began acting nervously, the facts are still not sufficient to support a finding as a matter of law that Officer Markley had probable cause to believe that there were drugs in the car before he commenced his search.
V.
Accordingly, we will affirm the judgment of the District Court insofar as it rejected Gomez’s claims pertaining to the third search. With respect to the District Court’s determination that Officer Mark-ley had probable cause to conduct the second search, we will vacate the District Court’s decision and remand for further proceedings consistent with this opinion.
. We do not understand Gomez to challenge the first search and, for essentially the reasons provided by the District Court, we conclude that summary judgment was properly granted to the defendants with respect to the third search. In addition, Gomez failed to raise any argument in his informal brief regarding the District Court's dismissal of his state law claims or its determination that the Midway Borough Police Department is not a "person” subject to potential liability under 42 U.S.C. § 1983. See Laborers’ Int’l Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir.1994) ("An issue is waived unless a party raises it in its opening brief, and for those purposes 'a passing reference to an issue ... will not suffice to bring that issue before this court.’ ”) (internal citation omitted). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480163/ | OPINION OF THE COURT
PER CURIAM.
Vincent Glazewski, a New Jersey state inmate, appeals pro se from the District Court’s grant of defendants’ motions for summary judgment. Because Glazewski’s appeal presents no substantial question, we will summarily affirm.
I.
In August 2006, Glazewski filed a civil rights action pursuant to 42 U.S.C. § 1983 for alleged violations of the Eighth and Fourteenth Amendments while he was housed at Northern State Prison (NSP). Glazewski filed an amended complaint in November 2007 to add additional defendants, including NSP officials and prison medical service providers.
Glazewski alleged that the medical treatment he received for chronic myelogenous leukemia (“CML”) amounted to a violation of his Eighth Amendment rights. He also argued that he was deprived of his prescribed medical diet. In addition, Glazew-ski alleged that the following conditions of confinement at NSP were unconstitutional: (1) subjected to second hand smoke by being housed in cells with smokers; (2) placed in a top bunk despite medical restrictions to a bottom bunk assignment; (3) not protected from two gang-related assaults by other inmates; (4) forced to live in unclean conditions without the appropriate amount of cleaning supplies; and (5) wrongly deprived of property while housed at NSP.
Defendants separately filed two motions for summary judgment, one on behalf of the “state defendants” and the other as “medical defendants.” The District Court granted these motions and dismissed Gla-zewski’s lawsuit. With respect to the state defendants, the court found that Glazewski admitted that he received medical care and treatment, and adduced no evidence showing that the state defendants knew of any mistreatment. Glazewski also could not show that these defendants directly or intentionally interfered with, or were deliberately indifferent to, his receipt of his medical diet. With respect to the medical defendants, the District Court cited the record’s extensive documentation of Gla-zewski’s medical treatment, medications, consultations, evaluations, and blood tests to find that Glazewski failed to establish deliberate indifference. The District Court also concluded that Glazewski had not shown that the state defendants knew of and disregarded a serious risk of physical harm by other inmates. Finally, the court found that Glazewski failed to sustain any of his claims for inhumane conditions of confinement or property claims. As such, the court dismissed all claims against all defendants.
Glazewski filed a timely appeal. We have jurisdiction under 28 U.S.C. § 1291. We will summarily affirm if Glazewski’s *87appeal presents no substantial question. See 3d Cir. L.A.R. 27.4 and 3d Cir. I.O.P. 10.6. We note that Glazewski includes new claims in his motion filed in support of his appeal. To the extent that he seeks to expand the scope of his § 1983 action filed in the District Court, we will not consider these new claims for the first time on appeal.
We exercise plenary review over the District Court’s order granting the motion for summary judgment. See Kaucher v. County of Bucks, 455 F.3d 418, 422 (3d Cir.2006). Summary judgment is proper if there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). An issue of material fact exists only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To overcome a motion for summary judgment, the non-moving party must “set out specific facts showing a genuine issue for trial.” Fed. R.Civ.P. 56(e)(2).
II.
To show that his medical care amounted to a violation under the Eighth Amendment, Glazewski must demonstrate “(1) that the defendants were deliberately indifferent to [his] medical needs and (2) that those needs were serious.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.1999) (citing Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). Glazewski must provide an evidentiary basis for concluding that prison officials had a “sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Deliberate indifference requires that prison officials know of an excessive risk to an inmate’s health or safety and affirmatively disregard that risk. Id. at 837-38, 114 S.Ct. 1970.
At the outset, we note that Glazewski fails to demonstrate that defendants acted with deliberate indifference. Rather, it appears that Glazewski disagrees with the course and manner of his treatment, which does not state a constitutional violation. Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir.2004). Summary judgment was also proper because Glazewski failed to provide evidence that would show a genuine issue at trial. Fed.R.Civ.P. 56(e). For example, in support of his appeal, he disputes the dates on which he received medication and blood work, arguing that it was often delayed, but conceding that he received treatment. In addition, he fails to show that prison officials acted with a “sufficiently culpable state of mind.” Farmer, 511 U.S. at 834, 114 S.Ct. 1970.
It is clear from the record that Glazew-ski received extensive medical care after he was diagnosed with leukemia in 2002. With respect to the state defendants, Gla-zewski failed to show that these defendants knew of any mistreatment while he was under the care of the prison’s medical professionals. His claim against the medical defendants is also baseless, as his medical records indicate that he received diagnostic tests, was prescribed medication, and received numerous oncology and bone marrow transplant consultations and evaluations. Throughout the course of his care, Glazewski also refused treatment. Yet, even with these refusals, Glazewski still received at least 43 blood tests from December 2003 to September 2008 and 14 consultations from January 2004 through August 2008. Accordingly, he cannot show deliberate indifference to his medical needs.
In addition, the crux of Glazewski’s claim — that defendants did not provide his *88prescription in the tablet form that he wanted — is without merit. Beginning on March 19, 2004, Glazewski refused his monthly dosage of Gleevac for 50 days because he argued that an oncologist ordered the medication in four doses of 100 mg tablet form, and not 400 mg tablets.1 However, “mere disagreement as to the proper medical treatment” is insufficient to state a constitutional violation. Spruill, 372 F.3d at 235. Glazewski also provides no proof that an oncologist prescribed how he should receive his dosage, and the record indicates that after June 2004, Glazew-ski’s doctors interchangeably prescribed each type of dosage, both of which Glazew-ski accepted. Glazewski, however, contends that he is no longer in remission and appears to attribute his condition to inadequate medical care. The record indicates that Glazewski admitted that he has never been told that he is no longer in remission by any doctor and he does not provide evidence to the contrary. Accordingly, his claim fails.
With respect to his medical diet, Glazewski filed numerous administrative remedy forms, and the record shows that they received written responses followed by corrective action. As the District Court found, Glazewski did not allege that defendants were interfering with or deliberately indifferent to the provision of his meals. Rather, the record shows that Glazewski believed that the meals were stolen by other inmates or not prepared. Glazewski has not pointed to any evidence in the record that would support a reasonable inference that any named defendant directly disrupted, or was deliberately indifferent to, his receipt of meals. On the contrary, the evidence shows that prison officials promptly attempted to remedy any instance of a missing meal, foreclosing a finding of a culpable state of mind. Therefore, summary judgment was proper.
III.
Glazewski’s claim that the state defendants failed to protect him from assault by other inmates fails. The Eighth Amendment imposes “a duty on prison officials to take reasonable measures to protect prisoners from violence at the hands of other prisoners.” Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir.1997) (citations and internal quotations omitted). To establish a failure to protect claim, an inmate must demonstrate that: (1) he is “incarcerated under conditions posing a substantial risk of serious harm;” and (2) the prison official acted with “deliberate indifference” to his health and safety. Farmer, 511 U.S. at 834, 114 S.Ct. 1970. “[T]he official must actually be aware of the existence of the excessive risk; it is not sufficient that the official should have been aware.” Beers-Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir.2001).
In his complaint, Glazewski concedes that he did not report one physical assault to prison staff for fear of inmate retribution. When he reported another assault, he was placed in Temporary Closed Custody while an investigation was pending. Glazewski provided no evidence showing that the prison officials were aware of the threat of assault before any of the incidents occurred. In addition, as prison officials took steps to protect him after he was attacked and the record indicates that Glazewski did not suffer subsequent attacks, summary judgment was proper.
*89IV.
Summary judgment was also properly granted regarding Glazewski’s conditions of confinement claims. “A prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837, 114 S.Ct. 1970.
With respect to his allegation that he was exposed to second hand smoke by being housed with smokers, Glazewski must show (1) a sufficiently serious medical need related to second hand smoke exposure; and (2) deliberate indifference by the prison authorities to that need. See Atkinson v. Taylor, 316 F.3d 257, 266 (3d Cir.2003). Glazewski acknowledges that smoking inmates hid their smoking from officers. As the District Court found, prison officials moved Glazewski to a new cell whenever he complained. Thus, even if Glazewski sufficiently could prevail on the first prong under Atkinson, he fails to show any deliberate indifference by prison officials.
To show that prison conditions amount to an Eighth Amendment violation, a plaintiff must establish that living conditions are cruel or deprive him of the necessities of life and that the conditions exist as a result of deliberate indifference by prison officials. See Rhodes v. Chapman, 452 U.S. 337, 346-48, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981); Wilson v. Seiter, 501 U.S. 294, 298-99, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). With respect to the cleanliness of the prison, the record shows that Glazewski conceded that inmates are responsible to maintain the cleanliness of their cells and that supplies were distributed by staff. His complaint that he was not given sufficient cleaning supplies is insufficient to state a constitutional violation. Similarly, after he complained to prison officials for being placed on a top bunk, he was moved to a bottom bunk per his medical authorization. As Glazewski fails to show any constitutional violation, summary judgment on these claims was therefore proper.
V.
Finally, Glazewski’s claim that prison officials deprived him of his property was properly dismissed because no due process violation exists if a meaningful post-deprivation remedy for the loss is available. Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). We have previously held that the prison’s grievance program and internal review provide an adequate post-deprivation remedy to satisfy due process. Tillman v. Lebanon County Corr. Facility, 221 F.3d 410, 422 (3d Cir.2000); Revell v. Port Auth., 598 F.3d 128, 138-39 (3d Cir.2010) (discussing New Jersey’s post-deprivation remedy procedures). Glazewski has provided no basis for concluding otherwise in his case.
VI.
As no substantial question is presented in this appeal, we summarily affirm the District Court’s decision.
. Even if true, Glazewski has not established that the provision of one 400 milligram Glee-vac pill as opposed to four 100 milligram pills indicates that defendants acted with any culpable state or mind or deliberate indifference. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480165/ | OPINION
PER CURIAM.
Abdul Ideen, a Pennsylvania state prisoner proceeding pro se, appeals the District Court’s sua sponte order dismissing his second amended complaint. Because the appeal does not present a substantial question, we will summarily affirm.
I.
In March 2009, Ideen filed a pro se complaint in the United States District Court for the Middle District of Pennsylvania pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown, Named Agents of *124Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). He subsequently amended his complaint twice. His second amended complaint named as defendants two federal agents, the Secretary of the Pennsylvania Department of Corrections (“DOC”), the superintendents of the State Correctional Institution at Houtzdale (“SCI-Houtzdale”) and SCI-Smithfield, and two other prison officials from SCI-Smithfield. Ideen appeared to raise claims of retaliation, racial profiling, and interference with his free exercise of religion.
The District Court referred the case to a Magistrate Judge, who recommended that the court dismiss Ideen’s claims. On October 19, 2009, the District Court entered a sua sponte order adopting the Magistrate Judge’s recommendation and dismissing Ideen’s second amended complaint. Ideen now seeks review of the District Court’s order.1
II.
We first examine the claims against the two federal agents, the superintendent of SCI-Smithfield, and the other two prison officials from that institution. The District Court dismissed these claims under 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim. We exercise plenary review over this aspect of the District Court’s judgment. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.2000).
To avoid dismissal, a complaint’s “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The allegations “must not be ‘so undeveloped that [the complaint] does not provide a defendant the type of notice of claim which is contemplated by [Fed. R. Civ. P. 8].’ ” Umland v. PLANCO Fin. Servs., Inc., 542 F.3d 59, 64 (3d Cir.2008) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008)). In this ease, portions of Ideen’s second amended complaint, like his two earlier complaints, are difficult to comprehend and border on being unintelligible. Even where his allegations are somewhat clearer, he failed to sufficiently develop a factual basis for his claims, despite having had three opportunities to do so. Accordingly, Ideen has not shown that the District Court erred in dismissing the claims against the federal agents, the superintendent of SCI-Smith-field, and the other two prison officials from SCI-Smithfield for failure to state a claim.
We now turn to Ideen’s claims against the DOC Secretary and the superintendent of SCI-Houtzdale. The District Court dismissed these claims without prejudice, concluding that they were more appropriately brought in the Western District of Pennsylvania because they arose while Ideen was incarcerated in that district. Although the court appeared to base its decision on 28 U.S.C. § 1404(a), that provision affords a district court discretion to transfer a claim to another district, not dismiss the claim. See 28 U.S.C. § 1404(a). This oversight, however, did not prevent Ideen from refiling his claims in the Western District of Pennsylvania. Moreover, he does not appear to challenge this aspect of the District Court’s judgment in this appeal, nor do these claims seem sufficiently clear or factually developed to state a claim. As such, we need not disturb the District Court’s dismissal of these claims.
*125Because this appeal does not present a substantial question, we will summarily affirm the District Court’s order dismissing Ideen’s second amended complaint. See 3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6. Ideen’s “Motion to Vacate Void Judgment 60(b)” is denied.
. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and may affirm the District Court's decision on any basis supported by the record. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir.1999). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480166/ | OPINION
PER CURIAM.
Mark Green has filed a petition for a writ of mandamus asking this Court to order recusal of the District Judge presiding over his pending criminal proceeding. We will deny the mandamus petition.
Green was arrested in December 2007 and indicted in the United States District Court for the Eastern District of Pennsylvania in January 2008 on five counts, including access device conspiracy under 18 U.S.C. § 1029(b)(2). On November 4, 2009, after a trial at which Green elected to proceed pro se with standby counsel, a jury convicted Green on four of the five counts. Green thereafter requested, and the District Court appointed, new counsel, who filed an omnibus post-verdict motion in April 2010 and moved for Green’s release pending sentencing and appeal. The District Court denied the motion for re*126lease, see Docket # 117, and it has yet to conduct a sentencing hearing.
On June 9, 2010, Green filed a pro se “emergency motion for recusal,” the substance of which mirrors his present mandamus request. The District Court denied the recusal motion, explaining that it would not consider the pro se motion because Green is currently represented by counsel.
Green now petitions for recusal via mandamus, alleging that the District Court’s rulings throughout the case have displayed “both deep seated favoritism for the Government and antagonism for Petitioner.” Ptn. at ¶4. In particular, Green offers a litany of challenges to the District Court’s actions, including the following: (1) the District Court adopted the government’s position in denying pre-trial bail “without any showing of proof;” (2) the District Court made “uncalled for” statements regarding Green’s prior time in prison and his knowledge of the law; (3) the District Court displayed bias by allowing the government to introduce evidence that it turned over on the day of trial, and erred in holding that a warrant used to obtain that evidence was valid; (4) the District Court referred to Green’s decision to proceed pro se as “foolish and unwise,” and erred in denying Green’s pro se pre-trial motions; (5) the District Court “told [Green] that if he waives his right to counsel now, he does so forever,” and had “ex parte communications with the [AUSA] and without defendant;” (6) the District Court “barred” Green from side-bar conversations during voir dire; (7) the District Court “refused to allow [Green] to pick his own jury, but instead allowed standby counsel and the Court to pick the jury;” (8) the District Court interrupted Green’s opening statement and erred in its instructions to the jury; (9) the District Court “confused” and “frustrated” Green as he questioned various witnesses; (10) the District Court displayed bias in its handling of the jurors; and (11) the District Court repeatedly displayed antagonism, and denied a fair trial, through its exercise of control over the proceedings. See Ptn. at ¶¶ 7-38.1 Green asks that the District Judge be recused and the matter reassigned to a different judge.2
Issuance of a writ of mandamus is appropriate in extraordinary circumstances only. Kerr v. United States Dist. Ct., 426 U.S. 394, 403, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976). “Before a writ of mandamus may issue, a party must establish that (1) no other adequate means exist to attain the relief he desires, (2) the party’s right to issuance of the writ is clear and indisputable, and (3) the writ is appropriate under the circumstances.” Hollingsworth v. Perry, — U.S. -, 130 S.Ct. 705, 710, — L.Ed.2d -(2010) (per curiam) (quotation marks and punctuation omitted). We have recognized that “[m]andamus is a proper means for this court to review a district court judge’s refusal to recuse from a case pursuant to 28 U.S.C. § 455(a), where the judge’s impartiality might reasonably be questioned.” Alexander v. Primerica Holdings, 10 F.3d 155, 163 (3d Cir.1993). It is well settled, however, that “judicial rulings alone almost never constitute a valid basis for a bias or *127partiality motion,” Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994), and mandamus is not a substitute for pursing a challenge to adverse rulings through appellate review after entry of a final judgment. See Cheney v. U.S. Dist. Ct., 542 U.S. 367, 380-81, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004).
Having carefully reviewed Green’s petition and its attached exhibits, we conclude that his complaints about the course of proceedings do not suffice to warrant mandamus relief for judicial bias or partiality. The bulk of Green’s challenge is to rulings made before and at trial, none of which clearly reflects “a deep-seated favoritism or antagonism that would make fair judgment impossible.” Liteky, 510 U.S. at 555, 114 S.Ct. 1147. Further, although Green sees evidence of bias in certain of the District Court’s comments regarding his decision to proceed pro se, “judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.” Id. The evidence here simply does not support a clear and indisputable right to mandamus relief. Insofar as Green asks that we overturn his conviction and all pre-trial orders, that relief is more properly sought on appeal after entry of a final judgment, not in this mandamus proceeding.
For these reasons, we will deny the petition for a writ of mandamus.3 Green’s motion for a stay of proceedings pending our mandamus review is denied.
. Green further contends that the District Court lacks power to adjudicate the case because the indictment is ‘‘jurisdictionally defective,” and that the District Court acted beyond its authority when it denied a motion to dismiss based on an alleged speedy trial violation. Ptn. at ¶¶ 47, 49.
. Green also asks that we "reverse the conviction ... and all pre-trial orders.” Ptn. at Concluding Paragraph.
. Green’s motion to proceed in forma pauper-is in this mandamus proceeding is granted, as he has made the requisite showing of indigence. We note that Green has not sought “to evade the [Prison Litigation Reform Act (“PLRA”) ] by masking as a mandamus petition a paper otherwise subject to the Act,” Madden v. Myers, 102 F.3d 74, 78 (3d Cir.1996), and thus the requirements of the PLRA will not be applied in the present proceeding. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480167/ | OPINION
WEIS, Circuit Judge.
Kai Chen, a Chinese citizen, illegally entered the United States in June 1993. Claiming a fear of persecution if returned to China, he sought asylum later that year. A final order denying asylum was issued on April 28, 2004. Nearly three years later, March 26, 2007, Chen moved to reopen his deportation proceedings. The Board of Immigration Appeals (BIA) denied the motion as untimely, and Chen petitioned for review. We will deny the petition.
Chen argues that the BIA’s decision to deny his motion to reopen was error. He asserts that his motion was timely filed due to, among other things, the birth of his two children in the United States and the increased use of forced abortions and sterilization in China. Chen also contends that, as part of his motion to reopen, he demonstrated prima facie eligibility for asylum, withholding of removal, and relief under the Convention Against Torture.
The BIA found that Chen’s motion to reopen was filed outside the statutory time limit, see 8 U.S.C. § 1229a(c)(7)(C)(i) (unless an exception applies, a “motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal”), and that he did not satisfy the claimed exception to the timeliness requirement. See 8 U.S.C. § 1229a(c)(7)(C)(ii) (“[t]here is no time limit on the filing of a motion to reopen if ... the motion is [among other things] ... based on changed country conditions arising in the country of nationality”).
According to the BIA, the birth of Chen’s children was a change in “personal circumstances,” not conditions in China. In addition, the BIA determined that the other evidence presented, including Chen’s affidavit and his father’s letter, failed to demonstrate changed country conditions, a well-founded fear of persecution, or a reasonable chance that Chen would be sterilized if removed to China. Accordingly, the motion to reopen was denied, and the BIA chose not exercise its discretion to reopen Chen’s proceedings sua sponte.
The Supreme Court has explained that “[m]otions for reopening of immigration proceedings are disfavored[,]” INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992), and we have acknowledged that generally they are to be “granted only under compelling circumstances.” Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir.2004). “In light of th[o]se considerations ... we review the denial of a motion to reopen for abuse of discretion.” Id. at 562. Our “highly deferential” examination of the record before us reveals no reversible error. See id. The BIA’s decision to deny Chen’s motion to reopen was not “arbitrary, irrational, or contrary to law.” See id.
Accordingly, the petition for review will be denied. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480168/ | OPINION
WEIS, Circuit Judge.
Defendant pleaded guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) and was sentenced to, among other things, 120 months imprisonment. He contends that the District Court erred in applying a four-level increase to his sentence for possessing a firearm in connection with another felony offense. He also argues that his sentence was unreasonable. We will affirm.
On January 20, 2006, defendant sped past a police car. The high-speed chase that followed ended with the defendant’s car jumping a curb and crashing into a house. Defendant then attempted to flee on foot, throwing or dropping a gun as he ran, but was captured moments later. Upon searching defendant, the police found nine clear plastic bags containing crack cocaine, totaling 0.13 grams, and one bag containing 3.05 grams of marijuana. They also discovered $417 in cash. The discarded gun was unloaded and its serial number had been defaced. Defendant later claimed that he had purchased the gun that morning to protect his teenage daughter, who had been threatened by gang-members at school.
Finding that defendant had “possessed a[ ] firearm ... in connection with another felony offense” — i.e., drug distribution— the District Court increased his sentence by four levels. See U.S.S.G. § 2K2.1(b)(6).1 Defendant now asserts that, because he purchased the gun to protect his daughter and because the amount of drugs he was carrying was consistent with personal use, he did not possess the gun “in connection with” another felony offense and, as a result, § 2K2.1(b)(6) did not apply.
The phrase “in connection with” — although “vague[] and pliab[le]” — still requires “some relationship between the gun and the felony.” United States v. Loney, 219 F.3d 281, 283, 286 (3d Cir.2000). At the sentencing hearing, the District Court recounted the events leading up to the defendant’s arrest and found that relationship sufficient under § 2K2.1(b)(6):
[W]e have police on patrol, a racing vehicle coming by.... The officer pulls behind it, activates overhead lights, and the vehicle continues to speed, and crashes in front of a residence. An individual gets out, and either ... dropped [the gun or] ... threw it.... He was chased, and he was seized by the officers after a struggle. And they find the clear plastic bag containing ... marijuana and the crack cocaine in the separate nine bags, together with a substantial sum of money, $417 in cash.
Looking at that ... I can clearly infer that the possession [of the gun] was in connection with another offense.
We have carefully reviewed the record and conclude that the inferences drawn by the district judge based upon the facts were reasonable. See id., 219 F.3d at 288 (district court may draw reasonable inferences in determining if § 2K2. 1(b)(6) should apply). The District Court did not abuse its discretion2 in finding that defen*134dant was engaged in felony drug distribution, nor in holding that his possession of the gun was connected to that offense. See id. (gun’s potential of facilitating the “connected” felony sufficed to establish relationship between gun possession and other offense); see also United States v. Gregory, 345 F.3d 225, 229-30 (3d Cir.2003) (endorsing a “rebuttable inference” that weapons possessed during drug trafficking are sufficiently “connected” to such activity for purposes of § 2K2.1(b)(6)).
Defendant next contends that his sentence of 120 months was unreasonable because the District Court failed to meaningfully consider his impaired mental health as a mitigating factor. We disagree. The district judge discussed in detail a lengthy report submitted by defendant, which purportedly showed his inability to follow the law. The District Court also permitted counsel to argue at length the report’s conclusions and the impact of the defendant’s troubled past on his current behavior.
In the end, however, the Court concluded that the defendant’s extensive criminal history, together with the events leading up to his arrest, demonstrated that he was “a clear danger to the public.” Given these facts and the other considerations listed in 18 U.S.C. § 3553, the District Court held that “[t]he guideline range, 120 months, is clearly appropriate here.” Finding no significant procedural or substantive error in the sentencing, we defer “ ‘to the district court’s determination that the § 3553(a) factors, on a whole,’ justify the sentence.” United States v. Tomko, 562 F.3d 558, 568 (3d Cir.2009) (citation omitted).
Accordingly, the Judgment of the District Court will be affirmed.
. Both the defendant’s brief and the Pre-Sen-tencing Report refer to § 2K2.1(b)(5) of the Guidelines. That subsection was renumbered in the November 1, 2006 version of the Guidelines, which applied to this case, and now appears at § 2K2.1(b)(6).
. See United States v. Lennon, 372 F.3d 535, 538 (3d Cir.2004) (district court's findings of fact reviewed for clear error; application of facts to the Guidelines reviewed for abuse of discretion). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480170/ | OPINION
SMITH, Circuit Judge.
Munir Almas petitions for review of a final order of the Board of Immigration *172Appeals (BIA), dismissing his appeal from an order of removal issued by an Immigration Judge (IJ).1 For the reasons that follow, we will deny the petition.
Almas is a citizen and native of Pakistan who entered this country on a B-2 Visa in December of 2004. He remained beyond authorization and was served with a Notice to Appear in August of 2005. Almas conceded he was removable, but applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT)2 on the basis of persecution on account of his Christian faith and his membership in a particular social group, i.e., the family of an individual targeted by Muslim extremists. Almas’s application explained that he is a Christian and that his son, Kashif, was a social worker for the Church of God in Pakistan. Almas claimed that when his son left Pakistan because of attacks by Muslim extremists, he became the extremists’ next target and was subjected to an assault and threats that he would be killed. He further claimed that some of the livestock on his farm was either killed or stolen, and that his family was threatened.
During a hearing before the IJ, Almas testified about the basis of his claim of persecution. The IJ voiced an interest in any corroborating evidence, but the only corroborating evidence Almas offered was the asylum application of his son, Kashif, who had been granted asylum. Kashifs application referenced a brother named Asif, who, after a confrontation with a Muslim Imam in 1997, sustained injuries requiring hospitalization. Yet Almas’s asylum application failed to name Asif as his son and Almas was unable to testify in any detail about the attack upon Asif or Asif s hospitalization.
The IJ found Almas not credible based on his inability to relate what happened to Asif and his failure to corroborate his testimony about what transpired after Kashif left for the United States. Almas appealed to the BIA, challenging both the adverse credibility finding and the requirement of corroboration. The BIA determined that the omission in Almas’s asylum application regarding his son Asif was not “particularly relevant to this claim of asylum, which was based on incidents that occurred” to Almas “after the departure from Pakistan of his son Kash-if.” Nonetheless, the BIA upheld the IJ’s adverse credibility finding because when questioned at the hearing, Almas was unable to remember “what befell [Asif] in Pakistan in the past.” In addition, the BIA agreed with the IJ that Almas had failed to adequately explain why corroborating evidence was not available.
Almas filed a timely petition for review. He again challenges the IJ’s adverse credibility finding and the requirement of corroboration, and contends that his due process rights were violated during the IJ hearing. We review a factual finding for substantial evidence and will not disturb the finding unless “any reasonable adjudicator would be compelled to conclude the contrary.” 8 U.S.C. § 1254(b)(4). We review the BIA’s legal determinations de novo. Wu v. Att’y Gen., 571 F.3d 314, 317 (3d Cir.2009).
“An applicant bears the burden of proving eligibility for asylum based on specific facts and credible testimony.” Zheng v. Att’y Gen., 549 F.3d 260, 266 (3d Cir. 2008) (citing 8 C.F.R. § 208.13(a); Abdille v. Ashcroft, 242 F.3d 477, 482 (3d Cir. *1732001)). After reviewing the record, we conclude that there is substantial evidence to support the IJ’s adverse credibility finding. Moreover, we find no error by the IJ in either requiring corroboration to support Ahnas’s application for asylum, or in concluding that Almas did not establish persecution or a well founded fear of persecution. Because Almas failed to establish his eligibility for asylum, he cannot meet the higher burden that applies to obtain withholding of removal. Lukwago v. Ashcroft, 329 F.3d 157, 182 (3d Cir. 2003).
Almas also contends that his due process rights were violated because the IJ truncated the hearing at the outset by advising the parties that she was interested in any evidence that: (1) showed that Muslim extremist groups in Pakistan, which were unable to retaliate against a specific individual, retaliated by targeting that individual’s family members; and (2) explained the absence of corroborating evidence. It is well settled that aliens have a due process right “to a full and fair hearing that allows them a reasonable opportunity to present evidence on their behalf.” Cabrera-Perez v. Gonzales, 456 F.3d 109, 115 (3d Cir.2006). We fail to find any limitation by the IJ of Almas’s testimony or the presentation of his case. Indeed, the IJ’s candor, from our perspective, revealed the troublesome aspects of Almas’s application and provided counsel an opportunity to fully address these concerns. For that reason, we conclude that Almas’s due process claim lacks merit.
We will deny Almas’s petition for review.
. The BIA exercised jurisdiction pursuant to 8 C.F.R. § 1003.1(b). We have jurisdiction under 8 U.S.C. § 1252(a).
. Almas does not contend that the IJ erred in discussing his CAT claim. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480174/ | OPINION
PER CURIAM.
Ahmed Shawky Farag Afifi petitions for review of a decision of the Board of Immi*192gration Appeals (BIA). For the reasons below, we will dismiss the petition.
Afifi, a citizen of Egypt, entered the United States in February 1999, with authorization to remain until August 1999. In 2007, he was charged as removable for overstaying his admission period. Afifi conceded removability and applied for special cancellation of removal as a battered spouse. After a hearing, an Immigration Judge (IJ) denied the application and ordered Afifi removed to Egypt.
On appeal to the BIA, Afifi argued that the IJ’s decision was correct but that he had been poorly represented by his former counsel because he failed to present the testimony of Afifi’s mother as a qualifying relative for his application of cancellation of removal. The BIA denied the motion to remand and dismissed the appeal. It concluded that Afifi had not satisfied any of the requirements for an ineffective assistance of counsel claim set forth in Matter of Lozada, 19 I & N Dec. 637 (BIA 1988). The BIA also agreed with the IJ that Afifi had not demonstrated that he was battered by his spouse. Afifi filed a pro se petition for review.
We need not decide whether we have jurisdiction to review the denial of Afifi’s application made pursuant to 8 U.S.C. § 1229b(b)(2) for cancellation of removal as a battered spouse because Afifi does not challenge the BIA’s decision.1 In his brief, Afifi simply states that his wife became a citizen in July 2008 and he has an approved petition for a “green card.” He asserts that he and his wife are on good terms now. He notes that he has lived in the United States for over ten years, his mother is a citizen, and he has no criminal record. He requests that we send his case back to the IJ to adjudicate the petition.
Afifi did not raise and exhaust these issues before the BIA or file a motion to reopen with the BIA.2 Under 8 U.S.C. § 1252(d)(1), we may review a final order of removal only if the petitioner has exhausted all administrative remedies. See James v. Mukasey, 522 F.3d 250, 258-59 (2d Cir.2008) (Court lacked jurisdiction to consider claim of eligibility of adjustment of status when application was not filed before the IJ). Moreover, we may decide the petition only on the administrative record on which the order of removal was based. 8 U.S.C. § 1252(b)(4)(A). The documents Afifi has submitted on appeal are not part of the administrative record.
For the above reasons, we will dismiss the petition for review for lack of jurisdiction. Afifi’s second motion for an extension of time to file a reply brief is denied. Afifi’s motion to stay removal and to reverse and remand is denied.
. See 8 U.S.C. § 1252(a)(2)(B); see Stepanovic v. Filip, 554 F.3d 673, 679 (7th Cir.2009); Wilmore v. Gonzales, 455 F.3d 524, 528 (5th Cir.2006); Perales-Cumpean v. Gonzales, 429 F.3d 977, 982-84 (10th Cir.2005); but see Hernandez v. Ashcroft, 345 F.3d 824, 833-35 (9th Cir.2003). We would have jurisdiction to review constitutional claims or questions of law. 8 U.S.C. § 1252(a)(2)(D).
. If Afifi’s wife became a citizen in July 2008, it appears arguable that Afifi's counsel before the BIA was ineffective for failing to file a motion to reopen pursuant to In re Velarde-Pacheco, 23 I. & N. Dec. 253 (BIA 2002). Afifi may wish to consider filing a motion to reopen in the BIA on those grounds. We express no opinion on the merit of such a motion. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480175/ | OPINION
WEIS, Circuit Judge.
Petitioner Trida Pagao Halum was ordered removed in absentia. Despite the petitioner’s assertion that she had not received timely notice of the hearing, the Immigration Judge denied her motion to reopen the removal proceedings, and the Board of Immigration Appeals affirmed. We will grant the petition for review.
Petitioner entered the United States on an H-1B work visa in December 2001. Though a licensed registered nurse in her home country of the Philippines with significant experience in critical care and neurosurgery, she worked as a nurse’s aide at various facilities upon her arrival in this country until August 2002. During this time, her employment was controlled by her immigration sponsor, whom she now accuses of human trafficking.
In August 2002, petitioner left her sponsor’s employment and began working toward obtaining the nursing credentials and licensure necessary for employment as a *194nurse in the United States. Some six months later, she retained an attorney to secure work authorization and adjust her status to permanent resident. The attorney was successful in obtaining a number of work authorization requests; however, petitioner was repeatedly denied permanent resident status.
On November 11, 2007, petitioner received a Notice to Appear for removal proceedings. The Notice, which had been sent to her previous address initially and forwarded to her current residence, did not specify the date or time of the removal hearing but instructed petitioner to notify the Immigration Court if her address had changed.
A Notice of Hearing, dated November 5, 2007, was mailed to petitioner at her old address. That Notice was returned as “not deliverable as addressed” and “unable to forward.” It appears that petitioner never received it.
On November 16, 2007, five days after she received the Notice to Appear, petitioner filed an online change of address form with the U.S. Citizen and Immigration Services (“CIS”). By letter dated November 23, 2007, a Friday, the CIS acknowledged receipt of the change of address form and advised petitioner that her Immigration Hearing was to take place on Thursday, November 29, 2007. The CIS also noted, “We have updated your address. Your address now appears on your application or petition as the address shown above.”1 Petitioner asserts that she did not receive this notice — or any notice of her hearing date — until after November 29.
Petitioner was not present for the hearing on November 29, 2007, and the IJ on that day ordered her removed in absentia. Unaware of this development, petitioner telephoned the CIS in March 2008 to inquire about her case. One month later, the CIS advised her to appear for a followup appointment and instructed her to bring all paperwork related to her permanent residency status requests. When petitioner arrived at the CIS office on April 28, 2008, she was immediately arrested and taken to a detention center.
On May 6, 2008, the petitioner’s attorney filed a motion to reopen the proceedings. The government opposed the motion because petitioner had “fail[ed] to include an affidavit supporting her claim that she did not receive notice of her removal hearing.” The IJ denied the motion, and the BIA dismissed the petitioner’s appeal, finding that she had failed to submit a change of address form to the Immigration Court. Petitioner timely filed for review before this Court.
A removal order entered in absentia may be rescinded at any time upon the filing of a “motion to reopen ... if the alien demonstrates that [she] did not receive notice” of the hearing. 8 U.S.C. § 1229a(b)(5)(C)(ii). We review the denial of the motion to reopen for abuse of discretion. Cabrera-Perez v. Gonzales, 456 F.3d 109, 115 (3d Cir.2006).
Here, the BIA opinion overlooked the fact that the IJ never addressed the inadequate notice contention. In addition, the BIA concluded that petitioner “did not submit a change of address form ... to the Immigration Court prior to the” issuance of the removal order.2
*195However, petitioner did submit a change of address form to the CIS, which ostensibly entered it into her case file prior to her removal hearing. That the CIS may not have notified the Immigration Court — or that the court failed to review the file— cannot justify the government’s removal order in absentia. The government cannot rely on the lack of an affidavit when crucial evidence is present in its own records.
The record in this case reflects serious deficiencies with respect to notice, which should be addressed in the first instance by the immigration authorities. Accordingly, we will remand this matter to the BIA with instructions to remit the matter to the IJ for determination of the adequacy of the notice afforded petitioner and other matters raised in the deportation proceedings.
. This notation was apparently highlighted, causing the copy in the appendix to be almost totally obscured. Only through extensive technical work by the clerk's office were we able to read the quoted material. We caution counsel for both parties on their obligation to the Court to provide legible material.
. We therefore have jurisdiction to consider the BIA’s sua sponte disposition of the claim *195of inadequate notice. See Lin v. Att’y Gen., 543 F.3d 114, 119-26 (3d Cir.2008) (Court of Appeals may consider issue not presented to BIA if BIA sua sponte ruled on issue). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480176/ | OPINION OF THE COURT
FUENTES, Circuit Judge:
Michael McKinnon appeals from the District Court’s ruling denying his motion *217for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). For the following reasons, we affirm the District Court’s judgment.1
I.
Because we write primarily for the parties, we discuss the facts only to the extent necessary for resolution of the issue on appeal.
A jury convicted McKinnon of distributing and possessing with intent to distribute cocaine base, cocaine powder, and marijuana; conspiracy to commit money laundering; and possessing firearms in furtherance of drug trafficking. McKin-non’s offense level was 43 and his criminal history category was V, resulting in a guideline range that included life imprisonment. McKinnon made no factual objections to the PSR. The District Court sentenced McKinnon to 480 months imprisonment, including: 396 months for the substantive drug offense, to be served concurrent to 240 months for the conspiracy, and 84 months for the firearms violation, to be served consecutively.
Based on the United States Sentencing Commission’s retroactive crack cocaine amendment, McKinnon filed a motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). The District Court denied McKinnon’s motion, issuing an order stating:
Initially, the defendant was facing a guideline range of life imprisonment. The court imposed a sentence outside the guidelines to meet sentencing goals but no greater than necessary. A forty year total term of imprisonment was the objective of the court. Since there was a mandatory 7 year consecutive sentence [on the firearms count], this court imposed a 33 year term on [the substantive drug offense], a 20 year concurrent term on the [conspiracy count], & a 7 year consecutive term on [the firearms count] for a total term of 480 months. This variance reflected the concern raised by the defendant at sentencing. No further reduction is warranted.
(App. 3)2
II.
McKinnon contends that the District Court erroneously treated U.S.S.G. § lB1.10(b)(2)(B) as mandatory in violation of United States v. Booker, which held that treating the Guidelines as conclusively binding violated a defendant’s Sixth Amendment right to trial by jury. 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Recognizing that our preee-*218dent in United States v. Dillon, 572 F.3d 146 (3d Cir.2009) clearly forestalled this argument, McKinnon nonetheless preserved this issue for appeal in light of the Supreme Court’s grant of certiorari in Dillon. We held the case C.A.V. pending the Supreme Court’s resolution of that case.
Recently, the Supreme Court affirmed our ruling in Dillon, holding that Booker, “which rendered the Guidelines advisory to remedy the Sixth Amendment problems associated with a mandatory sentencing regime, [does not] require! ] treating § lB1.10(b) as nonbinding.” Dillon v. United States, — U.S. -, 130 S.Ct. 2683, 2687, 177 L.Ed.2d 271 (2010). Specifically, the Court ruled that a sentence modification pursuant to § 3582(e)(2) was not “constitutionally compelled” and merely represented a “congressional act of lenity intended to give prisoners the benefit of later enacted adjustments to the judgments reflected in the Guidelines.” Id. at 2692. In turn, the Supreme Court rejected Dillon’s characterization of a § 3582(c)(2) proceeding as a “re sentencing.” Id. at 2690. In light of Dillon, it is clear that the District Court did not err by treating U.S.S.G. § lB1.10(b)(2)(B) as mandatory when it denied McKinnon’s motion for a sentence reduction.
III.
For the foregoing reasons, we affirm the judgment of the District Court.
. The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231 and we have jurisdiction to hear this appeal under 28 U.S.C. § 1291. While we review a district court’s interpretation of the Sentencing Guidelines de novo, we review the court's ultimate sentencing determination for abuse of discretion. See United States v. Mateo, 560 F.3d 152, 154 (2009).
. The Government contends that we need not reach McKinnon’s constitutional issue because “there is no reason to believe the district court denied [McKinnon's] sentence reduction in mandatory reliance on section IB 1.10(b)(2)(B).” Appellee’s Br. at 23. The U.S. Probation Office recommended that U.S.S.G. § IB 1.10(b)(2)(B) counseled against application of Amendment 706 since McKin-non's sentence constituted a non-guideline sentence pursuant to § 3553(a) and Booker. See Addendum on Defendant Requesting Sentence Reduction, at 3 (July 15, 2009). Although it did not explicitly state that it treated U.S.S.G. § IB 1.10(b)(2)(B) as mandatory, the language used by the District Court to deny McKinnon's motion mirrors the Policy Statement’s language. Therefore, for the purposes of disposing of McKinnon's appeal only and absent any indication to the contrary, we assume that the District Court treated U.S.S.G. § IB 1.10(b)(2)(B) as mandatory. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480177/ | OPINION
PER CURIAM.
Bulent Gul, a citizen of Turkey, entered the United States on October 29, 2000, as a non-immigrant in transit, with authorization to remain until November 8, 2000. In December 2005, Gul married a United States citizen, whose Petition for Alien Relative (Form 1-130) was later approved by the U.S. Customs and Immigration Service (“USCIS”). In March 2006, Gul applied for adjustment of status based on his marriage. See Immigration and Nationality Act (“INA”) § 245(a) [8 U.S.C. § 1255(a) ]. The USCIS denied Gul’s application, finding that he was inadmissible for permanent residence. In particular, the USCIS concluded there was reason to believe that Gul had been an illicit trafficker in a controlled substance because he had been charged in 2005 with various drug offenses in New Jersey. See INA § 212(a)(2)(C)(i) [8 U.S.C. § 1182(a)(2)(C)(i) ]. The majority of the state drug charges were dismissed, but, in February 2006, Gul pleaded guilty in New Jersey Superior Court to the disorderly persons offense of loitering for the purpose of obtaining or distributing a controlled *242dangerous substance. See N.J. Stat. Ann. § 2C:33-2.1(b).
In April 2007, the Government charged Gul with removability under INA § 237(a)(1)(B) [8 U.S.C. § 1227(a)(1)(B) ], as an alien who had overstayed his authorized admission period. The Government later charged Gul with being removable under INA § 237(a)(1)(A) [8 U.S.C. § 1227(a)(1)(A)], as an alien who, at the time of adjustment of status, was inadmissible because he had been convicted of a crime “relating to a controlled substance (as defined in section 802 of Title 21).”1 INA § 212(a)(2)(A)(i)(II) [8 U.S.C. § 1182(a)(2)(A)(i)(II) ]. Gul admitted that he had overstayed his period of admission, but denied that he was removable or inadmissible under INA § 212(a)(2)(A)(i)(II). The Immigration Judge (“U”) rejected Gul’s arguments, denied his renewed application for adjustment of status, and ordered him removed to Turkey. Gul appealed to the Board of Immigration Appeals (“BIA”).
The BIA concluded that INA § 212(a)(2)(A)(i)(II) could not provide a basis for Gul’s removability, but that it did render him inadmissible and, consequently, ineligible to adjust his status. That provision states in relevant part:
[A]ny alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of ... a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), is inadmissible.
INA § 212(a)(2)(A)(i)(II). An alien who satisfies these criteria “at the time of entry or adjustment of status” is also removable. See INA § 237(a)(1)(A). With respect to removability, the BIA held that it was “unable to determine to any degree of certainty whether the controlled substances contained in New Jersey’s Dangerous Substances Control Law are the same substances contained in section 102 of the Controlled Substances Act.” In the context of inadmissibility, however, the Board held that “[e]ven if the New Jersey Statutes cover some substances that are not contained in section 102 of the Controlled Substances Act, [Gul] ... has failed to meet his burden of proving that the admittedly ‘illegal substance’ for which he was convicted was not a controlled substance under 21 U.S.C. § 802.” Gul filed a timely petition for review.
We have jurisdiction pursuant to INA § 242 [8 U.S.C. § 1252], Whether a petitioner is eligible for adjustment of status “is a purely legal question” which we review de novo. Pinho v. Gonzales, 432 F.3d 193, 204 (3d Cir.2005); Kamara v. Att’y Gen., 420 F.3d 202, 211 (3d Cir.2005). We owe deference to the BIA’s construction of the INA because it is a statute that the agency is charged with administering. See Acosta v. Ashcroft, 341 F.3d 218, 222 (3d Cir.2003). Nevertheless, we owe no deference to the BIA’s interpretation of state criminal laws. See Santos v. Gonzales, 436 F.3d 323, 325 (2d Cir.2006).
The state statute under which Gul was convicted provides:
A person, whether on foot or in a motor vehicle, commits a disorderly persons offense if (1) he wanders, remains or prowls in a public place with the purpose of unlawfully obtaining or distributing a controlled dangerous substance or controlled substance analog; and (2) engages in conduct that, under the circumstances, manifests a purpose to obtain or
*243distribute a controlled dangerous substance or controlled substance analog. N.J. Stat. Ann. § 2C:33-2.1(b). To determine whether a conviction under this law “relates to” a controlled substance defined in 21 U.S.C. § 802, we apply a categorical approach. See Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); see also Mizrahi v. Gonzales, 492 F.3d 156, 159 (2d Cir.2007) (noting that whether the “law or regulation” violated relates to controlled substances under § 212(a)(2)(A)(i)(II) “effectively demands a categorical identification of the applicable violations of law.”). Under this approach, we may look only to the statutory definition of the offense, and may not consider the particular facts underlying a conviction. See Singh v. Ashcroft, 383 F.3d 144, 147-48 (3d Cir.2004). “[0]ur inquiry concludes when we determine whether the least culpable conduct sufficient to sustain conviction under the statute ‘fits’ within the requirements” of a controlled substance offense under § 212(a)(2)(A)(i)(II). Jean-Louis v. Att’y Gen., 582 F.3d 462, 470 (3d Cir.2009).
Gul argues that his conviction under § 2C:33-2.1(b) cannot categorically qualify as an offense relating to a controlled substance because it “represents the kind of inchoate offense that has no federal analog in federal controlled substances offenses, and is not included in the list of inchoate offenses [ (ie., attempt and conspiracy) ] encompassed” within § 212(a)(2)(A)(i)(II). (Pet’r’s Br. 2.) We conclude that these arguments are without merit.
Nothing in § 212(a)(2)(A)(i)(II) requires that the state offense have a federal analog to render an alien inadmissible. Rather, the offense need only involve a state law “relating to a controlled substance,” and the substance must be one defined in the Controlled Substances Act (“CSA”). Furthermore, “Congress’s use of the phrase ‘relating to’ in federal legislation generally signals its expansive intent.” Mizrahi, 492 F.3d at 159 (citing Morales v. TWA Inc., 504 U.S. 374, 383, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992)). Here, “[t]he operative statutory phrase, ‘relating to a controlled substance,’ modifies ‘law or regulation.’ ” Mielewczyk v. Holder, 575 F.3d 992, 994-95 (9th Cir.2009). To “relate” means “ ‘to show or establish a logical or causal connection between.’” Id. at 995 0quoting Webster’s New International Dictionary 1916 (3d ed.2002)). Thus, “if a law defining an essential element of a crime relates to a controlled substance, the crime itself is a violation of law that renders an alien inadmissible under” § 212(a)(2)(A)(i)(II). Mizrahi, 492 F.3d at 159.
A conviction under § 2C-33-2.1(b) specifically includes a controlled substance element. As noted above, it requires “wander[ing], remain[ing] or prowl[ing]” in a public place with the purpose of unlawfully obtaining or distributing a controlled substance, as well as “engaging] in conduct” that manifests a purpose to obtain or distribute a controlled substance. This distinguishes Gul’s case from those where laws prohibiting generic and inchoate conduct have been found not to relate to a controlled substance under the CSA, even if the underlying conduct clearly involved such a substance. See, e.g., Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1154-56 (9th Cir.2003) (holding that conviction under a statute that punished activities relating to “racketeering proceeds,” which included but was not limited to proceeds from “prohibited drugs,” was not an offense “relating to a controlled substance”); Coronado-Durazo v. INS, 123 F.3d 1322, 1325 (9th Cir.1997) (noting that in Arizona “solicitation, a preparatory offense, is a separate and distinct offense from the underlying crime.”); Castaneda De Esper v. INS, 557 *244F.2d 79, 83-84 (6th Cir.1977) (concluding that conviction for misprision of a felony— in this case, conspiracy to possess heroin— did not relate to a controlled substance because the misprision statute could apply to concealment of non-drug related felonies); In re Batista-Hernandez, 21 I. & N. Dec. 955, 960 (BIA 1997) (refusing to find conviction as an accessory after the fact for assisting a drug trafficker to be a conviction related to a controlled substance because, inter alia, “the crime of accessory after the fact has historically been treated as a crime separate and apart from the underlying crime.”). Indeed, “the distinction between a generic solicitation statute or one specifically aimed at controlled substances is critical when our inquiry is whether the statute of conviction is a state law relating to controlled substances.” Mielewczyk, 575 F.3d at 997. Thus, because an individual cannot be convicted of violating § 2C-33-2.1(b) if a controlled substance is not involved, we conclude that the law relates to a controlled substance.2
Gul further argues that his New Jersey conviction is not a crime because it is classified as a disorderly persons offense that “is specifically excluded from imposing any civil disability upon the person convicted.” (Pet’r’s Br. 13). See also N.J. Stat. Ann. § 2C:l-4(b) (“Disorderly persons offenses and petty disorderly persons offenses are petty offenses and are not crimes within the meaning of the Constitution of this State.”). Notably, however, New Jersey’s classification of an offense cannot dictate whether that offense renders an alien inadmissible under § 212(a)(2)(A)(i)(II). Cf. Acosta v. Ashcroft, 341 F.3d 218, 223 (3d Cir.2003) (holding that state legislature cannot determine how the term “conviction” in the INA is to be construed). In addition, there is no merit to Gul’s contention that his conviction does not fit within § 212(a)(2)(A)(i)(II) because it is “found among a series of disorderly persons offenses ... rather than among the actual controlled substances offenses” under New Jersey law. (Pet’r’s Br. 17). See Bhd. of R.R. Trainmen v. Balt & Ohio R.R. Co., 331 U.S. 519, 528-29, 67 S.Ct. 1387, 91 L.Ed. 1646 (1947) (holding that “the title of a statute ... cannot limit the plain meaning of the text.”).
For the foregoing reasons, we will deny the petition for review.
. The Government initially alleged that Gul was removable as an illicit drug trafficker, see INA § 212(a)(2)(C)(i), but later withdrew that charge.
. Despite the BIA’s assertion that it is not clear whether the New Jersey statute covers the same substances covered by the Controlled Substances Act, our review of the statutes reveals only three differences, none of which result in a legally significant difference between the New Jersey statute and the Controlled Substances Act. Compare 21 U.S.C. § 812, with N.J. Stat. Ann. §§ 24:21-5 through 24:21-8.1; see also 21 C.F.R. § 1308.13 (listing “Ketamine, its salts, isomers, and salts of isomers” as a Schedule III substance, thereby bringing Ketamine hydrochloride, the only substance listed in the New Jersey statute but not in the Controlled Substances Act, within the scope of the Controlled Substances Act). Thus, applying the categorical approach, Gul’s conviction necessarily implicates the Controlled Substances Act, even though it is unclear from the record of conviction which particular substance underlies his offense. In light of that conclusion, we need not address the question of whether, had the statutes been different in a meaningful manner, Gul could have met his burden of proof. See Evanson v. Att’y Gen., 550 F.3d 284, 291 (3d Cir.2008) (explaining that we only apply the modified categorical approach, rather than the formal categorical approach, when "[cjonfronted with a disjunctive statute of conviction.... ”). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480178/ | OPINION
BARRY, Circuit Judge.
This is the second of two actions brought by the Commodity Futures Trading Commission (“CFTC”) in response to a multi-million dollar investment fraud scheme involving commodity futures trading. In the first case, we affirmed the judgment entered against the manager of an investment vehicle called Shasta Capital Associates (“Shasta”), holding that Shasta’s manager, Equity Financial Group LLC (“Equity Group”), was a “commodity pool operator” (“CPO”) for purposes of the Commodity Exchange Act, 7 U.S.C. § 1, et seq. (“CEA”), even though Shasta did not actually execute any futures trades and instead forwarded money to another fund — Tech Traders1 — which executed trades. Commodity Futures Trading Comm’n v. Equity Fin. Group LLC, 572 F.3d 150 (3d Cir.2009) (“Equity”), cert. denied, Shimer v. Commodity Futures Trading Comm’n, — U.S. -, 130 S.Ct. 1737, 176 L.Ed.2d 212 (2010). We consider here whether appellant William Perkins (“Perkins”), the manager of another investment vehicle, Universe Capital Appreciation, LLC (“Universe”), which also did not execute futures trades, and instead forwarded investment funds to Shasta (which in turn forwarded the funds to Tech Traders), was a CPO.
The issue before us is essentially identical to the one we considered in Equity, and we respectfully decline Perkins’s emphatic invitation to revisit our recently-established precedent. The District Court determined that Perkins acted as a CPO. We agree, and will affirm.
*253The District Court had jurisdiction under 7 U.S.C. § 13a-l. We have jurisdiction under 28 U.S.C. § 1291. Our review of the District Court’s grant of summary judgment is plenary, and we apply the same test the District Court used. Howard Hess Dental Labs. Inc. v. Dentsply Int’l., Inc., 602 F.3d 237, 246 (3d Cir.2010). Summary judgment is appropriate when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Id. (citing Fed.R.Civ.P. 56(c)).
Perkins argues that he was not acting as a CPO because Universe did not participate in “the actual trading itself ... in the name of the pool entity from a commodity futures trading account that has been opened at a futures commission merchant ... in the name of the pool.” (Perkins Br. at 18.) That argument is unavailing in light of our opinion in Equity, in which we explained that
the statute does not require a commodity pool operator to execute commodity futures transactions. The language of the definition lacks an explicit trading requirement, and the remedial purposes of the statute would be thwarted if the operator of a fund could avoid the regulatory scheme simply by investing in another pool rather than trading. If an entity is engaged in a business in the nature of an investment trust, syndicate, or similar form of enterprise, and it solicits, accepts, or receives funds for the purpose of trading, it is a commodity pool operator. The actual trading of commodity futures is not required.
572 F.3d at 158.
Perkins offers numerous reasons why he believes we should revisit Equity and follow Lopez v. Dean Witter Reynolds, Inc., 805 F.2d 880 (9th Cir.1986), which he insists imposes a trading requirement. In Equity, we quoted Lopez’s four-part test (for determining whether an entity is a commodity pool) and wrote that “[t]he Lopez court confronted ... a different legal question” and “did not address whether a commodity pool operator must itself execute commodity futures transactions.” 572 F.3d at 158. Thus, we have already considered the specific arguments Perkins raises, and rejected them.
Perkins nevertheless suggests that we might benefit from “a competent analysis of the legislative history of the CEA and the expectation of Congress about the direct involvement in commodity futures trading activity by CPO’s [sic].” (Perkins Br. at 17-18 n. 3.) We think our legislative history analysis in Equity was more than satisfactory. There, we determined that “[t]he absence of a trading requirement is consistent with the purposes of the” CEA, explaining that “when Congress defined commodity pool operator, it sought to regulate the solicitation of funds from customers and potential customers. And it intended to protect them from harmful conduct, especially fraudulent solicitation. The statute would be undermined if one entity could escape regulation merely by having another execute its trades.” Equity, 572 F.3d at 157.
Perkins posits that the District Court’s analysis of Lopez is “a stunning example of why appellate review is ... necessary,” (Perkins Br. at 18-19), arguing that Universe could not have been a commodity pool because the Universe funds did not remain “combined” in “a single account,” but were instead “periodically transferred from time to time over a period of more than two years to ... Shasta which, in turn, periodically wired the funds ... to ... Tech [Traders].” (Id. at 21 (emphasis omitted).) This argument is without merit. Similar fund transfers took place in *254Equity, and we made clear that such transfers do not offend the definition of “commodity pool.” Allowing an investment manager to circumvent regulation merely by transferring funds from one account to another does not comport with Congress’s aim of protecting investors.
In his reply brief, Perkins cites thirty-eight provisions of the CFTC regulations and argues that our holding in Equity is “in direct conflict with all thirty-eight!”2 (Reply Br. at 11.) The cited provisions unsurprisingly require CPOs to provide commodity pool participants with extensive information about the commodity futures trades involving their money. Perkins reads those provisions as signaling that the CFTC itself interprets the terms “commodity pool” and “CPO” more narrowly than we did in Equity. However, as we pointed out in Equity, other CFTC regulations suggest just the opposite. 572 F.3d at 157 n. 13. The conflicting language of those regulations does not change our conclusion that Congress intended broad definitions of “commodity pool” and “CPO.”
Perkins also contends that Universe is distinguishable from Equity Group in that Universe was further from the actual trading (twice removed, instead of just once), and so did not have the character of a commodity pool. Our holding in Equity makes clear that the proximity to trading is not an important factor. If the pool is established with the purpose of trading in commodity futures, then the pool is a commodity pool for CEA purposes. See Equity, 572 F.3d at 158.
We reject the other arguments made by Perkins and the Tax Accounting Office, Inc., without further discussion. We will affirm the judgment of the District Court.
. We will use the name Tech Traders to refer to four entities that operated in concert: Traders, Inc., Tech Traders, Ltd., Magnum Investments, Ltd., and Magnum Capital Investments, Ltd. The distinctions between these companies are irrelevant to this appeal.
. For example, Perkins quotes regulations requiring that CPOs provide pool participants with certain information which only the trader is likely to know, like the "commodity interest positions liquidated,” "unrealized gain or loss in which the pool engaged,” and the “total amount of all brokerage commissions during the reporting period.” (Perkins Reply Br. at 4 (emphasis omitted).) | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480179/ | OPINION
BARRY, Circuit Judge.
At issue on this appeal is whether the District Court erred in granting the Internal Revenue Service’s (the “IRS”) petition to enforce a summons for the production of certain documents pursuant to the crime-fraud exception to the attorney-client privilege. We will remand the matter to the District Court with instructions to provide appellant Steven Trenk with an opportunity to argue against the application of the crime-fraud exception.
BACKGROUND
On August 26, 2005, the IRS issued a summons to Trenk, president of Gold Crown Insurance, Ltd., the corporate successor to TechTron Holdings, Inc. (“Tech-Tron”), in furtherance of its examination to determine TechTron’s federal income tax liability for the taxable year ending December 31, 2000. The IRS alleged that TechTron received $5.2 million in litigation settlement proceeds, which it transferred to a wholly-owned subsidiary in exchange for a demand note for $5.2 million from the subsidiary. TechTron then transferred the demand note to an attorney’s trust account, and on its corporate income tax return “reported the $5.2 million and deducted $5.2 million, effectively eliminating” that amount from taxable income. (App. at 59.) The IRS claims that this was an “abusive tax avoidance scheme” that enabled TechTron to avoid paying taxes on *256the settlement proceeds while still maintaining control over those funds. (Id. at 78.) The summons instructed Trenk to appear for a hearing to give testimony and to produce various documents and data.
On March 8, 2006, the government filed a petition to enforce the summons. In response, Trenk maintained that he was not in possession of any documents responsive to the summons “with the exception of the [four] documents which are being withheld as privileged.” (Id. at 120.) He proposed that “the Court review the [four] documents [being withheld] in camera to determine whether they should be disclosed to the Government.” (D.N.J. Docket, 06-cv-01004, Doc. No. 9 at 25.) On November 20, 2006, the District Court enforced the summons. With respect to the four documents withheld under Trenk’s “blanket assertion” of privilege, App. at 132, it ordered that Trenk “set up an in camera review of the aforementioned four documents” so that he would be able to explain ex parte why the documents should not be produced, id. at 132, 147. The Court added that if he failed to arrange the review, “the opportunity to do so will be deemed waived, and ... the Court, on petitioner’s application, will direct that the aforementioned documents be produced immediately.” (Id. at 147.)
By letter dated December 7, 2006, Trenk’s attorney submitted the four documents (Documents A-D 1) for in camera inspection and referred the District Court to a previously submitted memorandum setting out Trenk’s arguments why the documents should not be disclosed. On January 22, 2007, the Court granted Trenk’s partial motion for reconsideration, thereby reversing its previous order enforcing the summons, but the effect of that ruling on the Court’s earlier instructions to Trenk to arrange for in camera review of the four documents was unclear.
Trenk never arranged for ex parte review, and he maintains that the District Court never expected that he do so in light of its action on the motion for reconsideration. In March and April 2007, the Court scheduled an evidentiary hearing to address whether Trenk was in possession of relevant documents.2 After the first day of the hearing, Trenk’s attorney identified seven other “privileged documents which may arguably be within the scope of the summons,” App. at 554, and asked, by letter dated April 20, that the Court review these documents (Docs.E-K) “in camera along with the original four documents,” id. at 555. On February 26, 2009, 2009 WL 485375, the Court found that the crime-fraud exception applied to Documents A through K and ordered Trenk to produce them.
DISCUSSION
Trenk timely appealed the District Court’s order with respect to the production of Documents D through K. He argues that he was denied the opportunity to refute the application of the crime-fraud exception, and that, in any event, the exception should not be applied to Documents G, H, I and J, which were prepared after the relevant tax return was filed.
A. Jurisdiction and Standard of Review
The District Court had jurisdiction pursuant to 26 U.S.C. § 7604, and our juris*257diction on appeal is based on 28 U.S.C. § 1291. Our review of the legal issues associated with the application of the crime-fraud exception is plenary, and “[o]nce the court determines there is sufficient evidence of a crime or fraud to waive the attorney-client privilege, we review its judgment for abuse of discretion.” In re Impounded, 241 F.3d 808, 312, 318 (3d Cir.2001).
B. The Crime-Fraud Exception to the Attorney-Client Privilege
The attorney-client privilege protects confidences so as to “encourage full and frank communication between attorneys and their clients and thereby promote ... the observance of law and administration of justice.” United States v. Zolin, 491 U.S. 554, 562, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989) (quoting Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981)). Where the client abuses the privilege by using the attorney’s counsel to facilitate a future or continuing crime or fraud, however, “the privilege can be overridden.” In re Grand Jury Investigation, 445 F.3d 266, 274 (3d Cir.2006). The party seeking to apply the crime-fraud exception must “make a prima facie showing that (1) the client was committing or intending to commit a fraud or crime, and (2) the attorney-client communications were in furtherance of that alleged crime or fraud.” In re Grand Jury Subpoena, 223 F.3d 213, 217 (3d Cir.2000) (internal citations omitted).
In Zolin, the Supreme Court held that district courts could “conduct an in camera review of allegedly privileged communications to determine whether those communications fall within the crime-fraud exception.” 491 U.S. at 565, 109 S.Ct. 2619. It explained that before doing so, “the judge should require a showing of a factual basis adequate to support a good faith belief ... that in camera review of the materials may reveal evidence to establish ... that the crime-fraud exception applies.” Id. at 572, 109 S.Ct. 2619 (internal quotations and citation omitted). This is not an issue where — as in Trenk’s case — the party invoking the privilege freely submits the documents for in camera review.
We have subsequently explained, however, that whether to apply the crime-fraud exception is a separate, more demanding undertaking: “If the party seeking to apply the exception has made its initial showing, then a more formal procedure is required than that entitling plaintiff to in camera review.” Haines v. Liggett Group Inc., 975 F.2d 81, 96-97 (3d Cir.1992). In terms of process, this means that “where a fact finder undertakes to weigh evidence in a proceeding seeking an exception to the privilege, the party invoking the privilege has the absolute right to be heard by testimony and argument.” Id. at 97.
C. The Lack of Hearing
Trenk argues that the District Court erred by not providing him with an opportunity to address the crime-fraud exception, which the Court applied, without notice, in its February 26, 2009 order. We agree that although the documents were properly before the Court for in camera inspection, the Court should not have applied an exception that “break[s] the seal of a highly protected privilege” without first notifying Trenk and providing him with an opportunity for argument. See id. at 96.
At first blush, it is tempting to conclude that Trenk had his chance for argument but waived it. In its November 20, 2006 order, the District Court provided Trenk the opportunity to argue ex parte at an in camera hearing why the documents should be protected from disclosure. It explained *258that if Trenk did not arrange for in camera review, the chance to do so would be waived and he would be ordered to produce the documents. Trenk submitted Documents A through D by letter for the Court to review, and nothing more. He later sent a second letter, explaining that he found additional responsive documents, Documents E through K, which he asked that the Court review “in camera along with the original four documents.” (App. at 555.)
It is not sufficiently clear from the record before us, however, that Trenk had the opportunity to appear before the District Court ex parte to argue for his position. In granting Trenk’s partial motion for reconsideration on January 22, 2007, the Court — reasonably so — appears to have abandoned its initial plan to use in camera review to decide whether the documents should be produced and, instead, elected to defer ruling on the issue until after an evidentiary hearing. But the subsequent hearing that took place was primarily for “the limited purpose of allowing the Court to ... make an express determination on whether Trenk was in possession or control of the requested documents.” (Id. at 27.) The Court then, in its February 26, 2009 order, applied the crime-fraud exception without having heard from Trenk on the subject. In doing so, “the party invoking the [attorney-client] privilege,” was denied his “absolute right to be heard by testimony and argument.” See Haines, 975 F.2d at 97. Although it was assuredly unintended, this outcome is troubling when dealing, as we are, with an “ancient and valuable privilege.” United States v. Doe, 429 F.3d 450, 453 (3d Cir.2005).
One further point is worth mentioning. It is abundantly clear that between the time when the District Court first instructed Trenk to arrange for in camera review in its November 20, 2006 order and when it partially vacated that order on January 22, 2007, Trenk expected that — even if it were granted — his motion for reconsideration would have no impact on the Court’s November 20 instructions. His December 7, 2006 letter asking the Court to review Documents A through D states that “[t]he outcome of the [reconsideration] motion will have no effect on whether the allegedly privileged documents should be produced.” (App. at 536.) Rather than arrange to be present for an in camera review, he quite literally “mailed it in.” It is unclear, however, whether the Court was under the same impression about the impact of his motion, explaining at a hearing on March 27, 2007 that “the motion for reconsideration overshadowed” the privilege dispute and so it “didn’t make the [in camera ] review.” (Id. at 272.) Thus, on this record, we cannot say that Trenk was given the opportunity required by Haines to argue against the application of the crime-fraud exception. Although the practice of making documents available for in camera inspection “is well established in the federal courts,” Zolin, 491 U.S. at 569, 109 S.Ct. 2619, it does not deprive the party invoking the privilege of the opportunity to contest the application of the crime-fraud exception, Haines, 975 F.2d at 96-97; see In re Grand Jury Subpoena, 223 F.3d at 218.3
D. The Documents Prepared After Filing
Trenk argues that the crime-fraud exception should not apply to those documents — G, H, I, and J — that were prepared after the relevant tax return was *259filed, because tax violations are completed when the contested tax return is filed. The District Court rejected this argument, finding instead that the alleged fraud was in seeking to avoid taxation of the settlement not just during the 2000 tax year, but also “in each subsequent year.” (App. at 30.) In its view, “the fraud alleged ... is ongoing so long as [TeehTron] avoids paying taxes on the income.” (Id.) We agree; indeed, there is little value in filing a fraudulent tax return if the impropriety will be disclosed shortly thereafter. We also agree that the cases Trenk cites—United States v. Habig, 390 U.S. 222, 88 S.Ct. 926, 19 L.Ed.2d 1055 (1968) and Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965)—are distinguishable. In those cases, the asserted wrongdoing was filing the fraudulent tax returns; however, it is TechTron’s allegedly on-going efforts to eliminate the litigation settlement from taxable income that are at issue here. To the extent that the Court, on remand, determines that the crime-fraud exception applies, Documents G, H, I, and J would not be protected based on the date of their preparation.
CONCLUSION
For the reasons above, we will remand this matter to the District Court so that Trenk may have an opportunity to present arguments against the application of the crime-fraud exception to Documents D through K.
. We use the same identification letters used before the District Court.
. Although it was the District Court’s intention to “address all relevant ... attorney-client privilege issues” at the hearing, that topic was not explored in detail and the crime-fraud exception was not discussed. (App. at 27, 272, 502-05.)
. The government claims that Trenk failed to show that the documents at issue are privileged. The District Court initially ruled on the crime-fraud exception without developing this issue, and so we are unable to consider it on appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480608/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Francis Akinro appeals the district court’s order dismissing his civil complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Akinro v. King Castle Motel, No. 1:10-cv-01405-RDB (D. Md. June 7, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480182/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joe Rangel, a federal prisoner, appeals the magistrate judge’s order * denying relief on his 28 U.S.C.A. § 2241 (West 2006 & Supp. 2010) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the magistrate judge. Rangel v. Stansberry, No. 3:08-cv-00782-MHL, 2010 WL 114925 (E.D.Va., Jan. 12, 2010). We deny Rangel’s motion for appointment of counsel and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
The parties consented to the exercise of jurisdiction by the magistrate judge pursuant to 28 U.S.C. § 636(c) (2006). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480184/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard and Catherine Snyder appeal the district court’s orders dismissing their civil action and reconsideration of that order. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Snyder v. Greenberg Traurig, LLP, No. 1:08-cv-01270-GBL-TCB (E.D. Va. Oct. 29, 2009 & Jan. 11, 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/8480186/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ferenc K. Csabai appeals the district court’s order granting summary judgment to Defendants. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Csabai v. Martek Biosciences Corp., No. 1:09-cv-02280-CCB, 2009 WL 5206477 (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/8480187/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Debra I. Robertson appeals the district court’s order granting summary judgment in favor of the Appellee on Robertson’s claims of gender and race discrimination. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Robertson v. Cree, Inc., No. 5:08-cv-00013-H (E.D.N.C. Mar. 29, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480188/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carl L. Gilmore appeals the district court’s order dismissing without prejudice his “motion for a certifícate of appealability,” and “motion for relief from judgment under Rule 60(b).” We have reviewed the record and find no reversible error. Accordingly, we deny leave to proceed in forma pauperis and dismiss the appeal for the reasons stated by the district court. Gilmore v. Commonwealth of Va., No. 3:09-cv-00641-HEH (E.D.Va. Feb. 9, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480189/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Farrow, a federal prisoner, appeals the district court’s order denying relief on his 28 U.S.C.A. § 2241 (West 2006 & Supp.2010) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Farrow v. Johns, No. 5:09-hc-02146-FL (E.D.N.C. Feb. 11, 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/8480192/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eric D. White appeals the district court’s order denying his 18 U.S.C. § 3582 (2006) motion for reduction of sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. White, No. 1:92-cr-00256-JCC-4 (E.D. Va. filed Jan. 5, 2010 & entered Jan. 6, 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/8480193/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas Green appeals the district court’s order adopting the recommendation of the magistrate judge and dismissing without prejudice Green’s 42 U.S.C. § 1983 (2006) civil rights action. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Green v. Hyatt, No. 4:09-cv-02573-TLW, 2010 WL 597203 (D.S.C. Feb. 16, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court *319and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480194/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bobby James Brown appeals the district court’s orders denying his 18 U.S.C. § 3582(c)(2) (2006) motion for reduction of sentence and his motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Brown, No. 1:00-cr-00100-AMD-1 (D. Md. April 22, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480196/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ward Everette Mohler appeals the district court’s order denying his motion for reduction of sentence pursuant to 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. Mohler, No. 5:91-cr-00131-gec-2 (W.D.Va. Apr. 8, 2010); see United States v. Dunphy, 551 F.3d 247 (4th Cir.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/8480197/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Willie Barrett appeals the district court’s order granting his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm. United States v. Barrett, No. 4:04-cr-00087-H-3 (E.D.N.C. Apr. 12, 2010); see United States v. Dunphy, 551 F.3d 247 (4th Cir.2009). We deny Barrett’s motion to appoint counsel and his motion for production of documents. 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/8480198/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brooks James Terrell appeals the district court’s order denying relief on 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. Terrell, No. 7:99-cr-00610-HMH-1 (D.S.C. Mar. 16, 2010). We dispense with oral argument because *328the 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/8480199/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William A. LaRue appeals the district court’s order adopting the recommendation of the magistrate judge and dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C. § 1915A(b) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. LaRue v. Matheney, No. 2:08-cv-00983, 2010 WL 786249 (S.D.W.Va. Mar. 4, 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/8480200/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gary Lynn Palmer appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we deny Palmer’s motion for records at government expense, his motion for appointment of counsel, and his motion for default judgment and affirm for the reasons stated by the district court. Palmer v. Trent, No. 2:08-cv-00089-REM-JES, 2010 WL 56035 (N.D.W.Va. Jan. 6, 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/8480201/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Zane A. Johnson 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. Johnson v. Bailey, No. 5:10-cv-00016-GCM, 2010 WL 703056 (W.D.N.C. Feb. 24, 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/8480202/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Louis Jones appeals the district court’s order denying Jones’ 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 deny Jones’ mo*336tion for appointment of counsel and affirm for the reasons stated by the district court. United States v. Jones, No. 1:04-cr-00249-LMB-1 (E.D. Va. filed Feb. 19, 2010; entered Feb. 22, 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/8480203/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Larry Bellamy seeks to appeal the district court’s order treating his Fed. R.Civ.P. 60(b) motion as a successive 28 U.S.C.A. § 2255 (West Supp.2010) motion, and dismissing it on that basis. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir.2004). 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 motion 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 Bellamy has not made the requisite showing. Accordingly, we deny a certificate of ap-pealability and dismiss the appeal.
Additionally, we construe Bellamy’s notice of appeal and informal brief as an application to file a second or successive § 2255 motion. United States v. Winestock, 340 F.3d 200, 208 (4th Cir.2003). In order to obtain authorization to file a successive § 2255 motion, a prisoner must assert claims based on either: (1) newly discovered evidence, not previously discoverable by due diligence, that would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, previously unavailable, made retroactive by the Supreme Court to cases on collateral review. 28 U.S.C.A. § 2255(h) (West Supp.2010). Bellamy’s claims do not satisfy either of these criteria. Therefore, we deny authorization to file a successive § 2255 motion.
*340We 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/8480204/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James G. Blakely appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Blakely v. Tatarsky, No. 4:08-cv-03609-MBS, 2009 WL 2922987 (D.S.C. filed Sept. 1, 2009) & (entered 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/8480205/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Antrantrino Lee 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 deny Lee’s motion for appointment of counsel and affirm for the reasons stated by the district court. United States v. Lee, No. 5:01-cr-00221-H-1 (E.D.N.C. Sept. 10, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480206/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alexander H. Bradley, Jr., appeals the district court’s order accepting the recommendation of the magistrate judge and granting summary judgment in favor of Defendants in his complaint alleging that he was terminated from his employment in violation of 42 U.S.C. §§ 1981, 1983 (2006), and South Carolina law. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Bradley v. South Carolina Dep’t of Corr., No. 3:08-cv-02510-JFA (D.S.C. Mar. 5, 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/8480208/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John David Simpson appeals the district court’s orders denying relief on his 42 U.S.C. § 1983 (2006) complaint and denying reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Simpson v. Johnson, No. 3:05-cv-00876-REP (E.D. Va. Mar. 28, 2008; Aug. 6, 2009; Sept. 3, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials be*350fore 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/8480209/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Willie Jerome McRae appeals the district court’s order denying relief on his motion for sentence reduction. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. McRae, No. 5:98-cr-00037-F-13 (E.D.N.C. Sept. 22, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480210/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anya Lee Jackson appeals the district court’s order denying Jackson’s 18 U.S.C. § 3582(c) (2006) motion for reduction of sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Jackson, No. 4:07-cr-00902-TLW-1 (D.S.C. filed June 30, 2009; entered July 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/8480211/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rodney Hill seeks to appeal the magistrate judge’s entry of an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), notifying Hill of the need to respond to a summary judgment motion. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed. R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-16, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Hill seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480212/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Juan Bautista AIomia-Torres appeals the district court’s order denying relief on his motion for sentence reduction. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Alomia-Torres, No. 3:97-cr-00040-FDW-2 (W.D.N.C. July 21, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480213/ | PER CURIAM: *
The Federal Public Defender appointed to represent Heath Hill has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Hill has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480242/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Julius D. Weathers appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C. § 2254 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Weathers v. Stevenson, No. 2:09-cv-01999-TLW, 2010 WL 935196 (D.S.C. Mar. 12, 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/8480216/ | ORDER
Fanny Washington was 64 when a jury found her guilty on 17 counts of wire fraud, 18 U.S.C. § 1343, and 7 counts of presenting false claims to the Internal Revenue Service, id. § 287. The district court sentenced her to a total of 41 months’ imprisonment and ordered restitution. Washington had sought home confinement. On appeal she argues that the district court’s explanation for her prison sentence is inadequate to demonstrate that the court gave adequate consideration to her “advanced age” and medical history, which Washington characterizes as her “principal arguments” at sentencing. But she overstates the case she made to the district court, and we affirm.
I.
Washington worked for a tax-preparation service based in the lobby of a Chicago currency exchange. She met with clients, prepared their tax returns, and helped seniors and persons with disabilities complete applications for state financial assistance. Washington stole the identities of 11 clients, filed false federal income tax returns in their names for tax years 2000 through 2003, and cashed $49,223 in refund checks. She likewise filed false returns for herself and her husband for tax years 2000 through 2004, claiming another $29,975 in refunds.
Washington also defrauded the Social Security Administration. She was the “representative payee” — a third party who receives benefits on behalf of a recipient, usually due to incapacity, see 42 U.S.C. § 405(j) — for an elderly man with schizophrenia. After he died in 1988, Washington deposited his benefit checks directly into her bank account for 14 years until she was confronted by an agent from the Social Security Administration. She converted a total of $83,639 in benefits.
In the presentence investigation report, the probation officer reported that Washington expressed displeasure with her trial and its outcome. She complained that many persons commit these same crimes but are not caught or prosecuted, and she stated that she did not profit from her criminal activity as much as others. The probation officer also documented Washington’s medical record: heart attacks in 1990 and 1997; a history of lupus, hyper*572tension, angina, heart disease, high cholesterol, cataracts, and glaucoma; and Stickler syndrome (an inherited disorder that causes eye problems, altered facial features, hearing difficulty, and joint pain, see Mayo Clinic, Stickler Syndrome, http:// www.mayoclinie.com/health/stickler-syndrome/DS00831 (last visited July 7, 2010)). The probation officer assumed that Washington’s health was a mitigating factor but concluded that it was the only such factor and did not outweigh the scope of her criminal conduct, her refusal to admit responsibility, and the prolonged duration of her fraud against the Social Security Administration.
The day before Washington’s sentencing hearing, her lawyer filed a 4-page memorandum seeking a sentence of 3 years’ probation with a year of that in home confinement. According to counsel, this alternative to prison was necessary due to Washington’s “substantial medical needs, lack of criminal history, and family obligations.” Washington’s memo recites— without elaboration and almost verbatim— the probation officer’s description of her medical problems. Her age is not identified as a mitigating factor.
At the sentencing hearing, the district court calculated a guidelines imprisonment range of 33 to 41 months, which is not disputed. The court then invited allocution from defense counsel, who started to discuss Washington’s sentencing memorandum. The judge interrupted and said he was unaware of the memo. A copy was tendered, the court asked for a moment, and then there was a brief pause. When counsel resumed, he alluded to the memo and proceeded to “highlight” Washington’s medical history. Counsel asserted that Washington’s “significant and serious medical history and her physical condition” was “the central issue” but did not elaborate. Age was not mentioned as a mitigating factor. The prosecutor replied that Washington’s health was stable despite previous heart and eye surgery. The prosecutor added — without contradiction from Washington — that her ailments could be effectively treated at a Bureau of Prisons medical facility.
The district court concluded that a prison sentence at the high end of the range was essential “for deterrence, specific deterrence” since Washington had not accepted responsibility and claimed ignorance about why she was prosecuted. After the court announced the sentence, Washington’s counsel asked that her surrender date be delayed so that she could continue seeing her cardiologist. The district court declined but permitted Washington to renew her motion if she could produce medical documentation substantiating the need for delay. Washington never did.
II.
Washington does not dispute the calculation of the guidelines imprisonment range. She essentially makes one argument on appeal: that the district court’s explanation for imposing a 41-month sentence fails to demonstrate that the court considered the pertinent factors under 18 U.S.C. § 3553(a). According to appellate counsel, the district court did not at any point “explicitly recognize that it had specifically considered any of the factors under § 3553” and was silent “regarding Washington’s medical history and advanced age.” We review the substance of a sentence only for reasonableness, but examine the manner in which it was imposed under a nondeferential standard. United States v. Zohfeld, 595 F.3d 740, 743 (7th Cir.2010); United States v. Villegas-Miranda, 579 F.3d 798, 801 (7th Cir.2009).
A sentencing court need not mention each of the § 3553(a) factors, especially when the sentence is within the guidelines *573range. United States v. Coopman, 602 F.3d 814, 819 (7th Cir.2010); United States v. Moreno-Padilla, 602 F.3d 802, 811 (7th Cir.2010). Rather, the court must give the reasons for its choice of sentence and address the defendant’s principal arguments, but need not address weak or stock arguments. United States v. Christiansen, 594 F.3d 571, 577 (7th Cir.2010); Villegas-Miranda, 579 F.3d at 801; United States v. White, 582 F.3d 787, 798 (7th Cir.2009), cert. denied, - U.S. -, 130 S.Ct. 1542, 176 L.Ed.2d 136 (2010); United States v. Tahzib, 513 F.3d 692, 695 (7th Cir.2008); United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.2005).
Washington contends that her age and medical history were significant mitigating factors, and that the district court’s failure to explicitly mention either suggests that the court did not consider the § 3553(a) factors. The Sentencing Commission has concluded that medical issues, unless they arise to the level of an “extraordinary physical impairment,” generally do not provide a reason for imposing a below-range sentence. U.S.S.G. § 5H1.4; United States v. Poetz, 582 F.3d 835, 837-38 (7th Cir.2009). Likewise, the Commission has taken the position that age is relevant only if the defendant is elderly and infirm. U.S.S.G. § 5H1.1; United States v. Powell, 576 F.3d 482, 499 (7th Cir.2009). Of course, the Commission’s views are not binding after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), but sentencing courts may still look to the Commission for guidance in applying the § 3553(a) factors. Powell, 576 F.3d at 499; United States v. Filipiak, 466 F.3d 582, 584 (7th Cir.2006); United States v. Castro-Juarez, 425 F.3d 430, 434 (7th Cir.2005).
First, there was no reason for the district court to mention Washington’s age because it was never an issue. Washington’s sentencing memorandum includes only one reference to her age: a single sentence that she has “resided most of her 64 years in the Chicago-land area.” And not once at the sentencing hearing did her lawyer assert that Washington’s age was a mitigating factor. At all events, at no point did Washington (nor does she now) suggest that she is elderly or infirm, see U.S.S.G. § 5H1.1; Powell, 576 F.3d at 499, or that her age contributed to her crimes or lessens the need for punishment, see United States v. Omole, 523 F.3d 691, 699 (7th Cir.2008) (vacating below-range sentence where district court cited defendant’s youth, a characteristic not unique to the defendant, as a basis for a significant decrease). The argument that advanced age is always a mitigating factor is a “nonstarter.” United States v. Wurzinger, 467 F.3d 649, 652 (7th Cir.2006); United States v. Bullion, 466 F.3d 574, 576 (7th Cir.2006).
As for her health, Washington at least asserted that her medical history was a reason to impose a below-range sentence, but that contention was never developed in the district court and thus was so weak that no response by the court was necessary. In her sentencing memorandum and in open court Washington catalogued her medical issues and stated that she is in poor health, but never did she try to explain why her poor health warrants leniency in punishment. See United States v. Jackson, 547 F.3d 786, 795-96 (7th Cir.2008) (concluding that sentencing court was not required to discuss defendant’s contention that he deserved lower sentence because of low IQ where defendant failed to supply documentation of mental functioning or explain how low IQ contributed to commission of the crime), cert. denied, - U.S. -, 129 S.Ct. 1538, 173 L.Ed.2d 666 (2009); United States v. Beier, 490 F.3d 572, 574 (7th Cir.2007) (upholding district court’s refusal to impose lower sentence when defendant who was *574molested and had low IQ failed to explain why these personal characteristics warranted leniency). Washington did not argue that she was experiencing complications at the time of sentencing. See United States v. Harris, 567 F.3d 846, 854-55 (7th Cir.) (remanding for resen-tencing where district court imposed 504-month sentence without mentioning defendant’s argument that complications from diabetes, including amputated leg, warranted lower sentence), cert. denied, - U.S. -, 130 S.Ct. 1032, 175 L.Ed.2d 632 (2009). She experienced all of her medical ailments while executing her fraudulent schemes, but she made no effort to explain why conditions that did not hinder her crimes should then warrant less punishment. Cf. United States v. Dyer, 216 F.3d 568, 570-71 (7th Cir.2000) (“If Dyer’s mental condition was not a but-for cause of his crime, that is, if he would have committed the crime even if he had been completely sane at all times, then it is hard to see how his mental condition is any more relevant to his punishment than the color of his hair.... If there is no connection between the defendant’s mental condition and his crime, there is no basis for a punishment discount.”). Further, Washington never contended that her maladies are themselves imprisoning, i.e., that she is bedridden or that her conditions require a level of care that the BOP cannot provide. Indeed, Washington was silent when the prosecutor asserted that the BOP was equipped to deal with her medical issues. Cf. United States v. Dowell, 388 F.3d 254, 256 (7th Cir.2004) (upholding refusal to depart downward based on defendant’s heart condition where district court concluded that BOP’s medical care was sufficient); United States v. Krilich, 257 F.3d 689, 693-94 (7th Cir.2001) (overturning downward departure based on defendant’s poor health where defendant did not show that his heart condition was so disabling as to require constant care or render him bedridden); United States v. Albarran, 233 F.3d 972, 978-79 (7th Cir.2000) (upholding refusal to downwardly depart on basis of defendant’s heart condition where defendant did not present any evidence that he needed constant care). Thus, the district court’s silence about Washington’s medical history was of no consequence because Washington never established that her health was a significant mitigating factor. See United States v. Nurek, 578 F.3d 618, 626 (7th Cir.2009) (explaining that district court was not obligated to specifically discuss defendant’s physical ailments where those ailments were not shown to be significant mitigating factors), cert. denied, - U.S. -, 130 S.Ct. 2093, 176 L.Ed.2d 729 (2010); United States v. Simmons, 582 F.3d 730, 734-35, 738 (7th Cir.2009) (same).
Because the district court was not required to mention Washington’s age or medical history, she is left to argue that the court failed to adequately weigh the § 3553(a) factors. We presume that Washington’s sentence is substantively reasonable because it falls within the properly calculated guidelines range. See Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005). Nothing in the record overcomes this presumption.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480218/ | ORDER
Annette Goble seeks review of the denial by an Administrative Law Judge of her application for disability insurance benefits. Specifically, she contests the ALJ’s conclusions that her testimony was not credible and that she retained a residual functional capacity for light work. Because the ALJ impermissibly substituted her own judgment for that of the treating physicians, we reverse and remand.
In November 2004, Goble applied for disability insurance benefits, claiming an inability to work as of that date due to fibromyalgia, chronic fatigue syndrome, herniated and degenerative discs, and chronic migraines. Goble was born in 1958, is licensed in practical nursing, and worked as a licensed practical nurse, teacher’s assistant and pharmacy technician. The local disability agency denied her application, and the ALJ reconsidered the denial at a hearing in May 2007.
At the hearing Goble presented medical records from treating physicians including Goble’s family practitioner, Dr. Dale Hadland, who first diagnosed her with fibromyalgia in 1995. Since 2004, he has prescribed Cymbalta, Skelaxin, and methadone for her fibromyalgia and chronic back pain. He wrote a letter in 2006 stating: “I believe the patient is unemployable. She is unable to sit, stand, bend, and/or really function mentally in any type of employment situation secondary to her chronic pain syndrome and muscle tightness/pain associated with the fibromyalgia.” Goble also presented medical records from internist Dr. Oke-chukwu N. Iwu, who first saw her in October 2006. He noted that she had severe fibromyalgia, fairly significant degenerative joint disease, inability to sleep, and mild major depression. He later increased her methadone dosage. In April 2007, Dr. Iwu wrote Goble’s lawyer saying that she was under his care “for chronic pain syndrome, primarily due to fibromyalgia, which is fairly crippling.” Dr. Iwu said that Goble was unable to sit or stand for more than 5 or 10 minutes without aggravating her pain and needed assistance with activities of daily living involving arm extension.
Goble also saw several consulting physicians, including psychologist Lynne E. Johnson, who performed a mental-status *590evaluation in August 2005 and concluded that Goble had developed a depressive disorder as a reaction to the pain and associated limitations of fibromyalgia. In 2005 two state-agency physicians reviewed the medical record and agreed that Goble suffered from fibromyalgia and neck and back pain, but also concluded that she still could lift 10 pounds frequently and 20 pounds occasionally, and could stand, walk, or sit 6 hours in an 8-hour work day.
At the hearing Goble testified that she cannot sit for more than 5 or 10 minutes at a time, or stand for more than a minute, or walk much beyond 100 yards. She added that she cannot raise her arms above shoulder height and drops things all the time. She also testified that she is unable to sleep. Goble said that she can drive, feed herself, brush her teeth, and manipulate buttons and zippers without assistance. She stated that she has difficulty concentrating and maintaining attention. Goble recounted that she and her husband had lived in Utah for 6 months, and when she was there, her fibromyalgia was somewhat better. She testified that she had taken methadone for pain for four years, but it was no longer helping. To avoid increasing her dosage again, she recently switched to morphine. She testified that her pain prevents her from getting out of bed 2 or 3 days a week.
Three other witnesses testified at the hearing. Dr. Andrew Steiner, a specialist in physical medicine and rehabilitation, was called by the ALJ as a neutral medical expert. Dr. Steiner, who did not examine Goble, opined that her pain is primarily attributable to fibromyalgia and not to degeneration of the spine. He said that he found no “objective evidence” in her medical records supporting Goble’s testimony about experiencing problems with reaching, gripping, grasping, and holding items, and he pronounced Goble capable of performing light work with occasional overhead reaching and no limitation on the use of her hands. Edward J. Utities, a vocational expert, testified that a person with the residual functional capacity described by the ALJ could not perform Goble’s past work but could perform one of the 8,000 jobs in Minnesota for banders-and-cello-phaners, wrapping machine operators, garment folders, polypackers and heat sealers, and other unskilled wrapping and packing positions. Kent Goble, Goble’s husband, testified that her condition had worsened in the two years preceding the hearing. He said that Goble drops things, has memory lapses, and has difficulty staying on task.
In July 2007 the ALJ issued her decision finding Goble not disabled. Under the five-step sequential analysis, see 20 C.F.R. § 404.1520(a)(4), the ALJ found at step one that Goble had not engaged in substantial gainful activity since November 2004. At step two, she found that Goble suffers from multiple severe impairments: fibromyalgia or myofascial pain, degenerative disc disease of the cervical, thoracic and lumbar spine, migraine headaches, depression, and chronic pain syndrome. At step three, relying on the testimony of Dr. Steiner, the ALJ concluded that these impairments do not alone or in combination meet or medically equal a listed impairment. The ALJ found that Goble retains the residual functional capacity to perform unskilled, light work. Jobs in this category require lifting 10 pounds frequently and 20 pounds occasionally, and standing or walking 6 hours and sitting 2 hours in an 8-hour work day. The ALJ limited the work, however, to routine, repetitive 3- to 4-step jobs that do not require more than occasional reaching overhead. The ALJ did not entirely credit Goble’s testimony about the intensity, duration, and limiting effect of her symptoms. The ALJ viewed Goble’s statements as inconsistent with notes of treating physicians describing her *591as alert and well oriented and with Goble’s own description of her range of daily living activities. The ALJ also thought it significant that Goble had not completed a recommended physical-therapy program, had temporarily lived in Utah without taking medication, and had previously held full-time jobs despite her impairments and had not sought less-demanding work. Relying on the testimony of the vocational expert, the ALJ concluded that Goble cannot perform her past work but still is employable because there are available jobs that can be performed by someone with her residual functional capacity. The ALJ’s decision became the final decision of the commissioner when the Appeals Council denied Goble’s request for review on May 16, 2008.
Goble presents two main arguments: (1) the ALJ’s credibility determination is patently wrong, and (2) the ALJ’s RFC determination is not supported by substantial evidence.
Goble first argues that the ALJ wrongly concluded that her account of her limitations is contradicted by objective medical evidence. She argues that not only is her pain consistent with the objective evidence, but that no objective support is required for her subjective assertions of pain. She cites Sarchet v. Chater, 78 F.3d 305, 306-07 (7th Cir.1996), for the proposition that fibromyalgia symptoms are entirely subjective, and Bauer v. Astrue, 532 F.3d 606, 609 (7th Cir.2008), for the proposition that a claimant may appear to be doing better at certain points without undermining her claim of disability.
We will not overturn an ALJ’s credibility finding unless it is “patently wrong.” Craft v. Astrue, 539 F.3d 668, 678 (7th Cir.2008). An ALJ should compare the consistency of a claimant’s statements against objective information in the medical record, SSR 96-7p, 1996 WL 374186, at *6-7, and we will disturb an ALJ’s credibility determination only if that finding is unreasonable or unsupported, Sims v. Barnhart, 442 F.3d 536, 538 (7th Cir.2006).
The ALJ acted unreasonably when she rejected Goble’s subjective allegations of pain and of medication side effects on the ground that Goble appeared “alert and oriented, pleasant and cooperative” in the presence of treating physicians. None of the doctors who made these observations viewed them as inconsistent with chronic pain, and in fact continued to prescribe methadone and other medications as well as batteries of tests in response to Goble’s complaints of pain. We have deemed it improbable that a claimant would undergo pain-treatment procedures such as heavy doses of strong drugs in order to increase chances of obtaining disability benefits or that doctors would prescribe these treatments if they thought she were faking. Diaz v. Prudential Ins. Co. of Am., 499 F.3d 640, 646 (7th Cir.2007); Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir.2004). Without medical evidence suggesting a discrepancy between Goble’s alleged chronic pain and her alert appearance, the ALJ impermissibly substituted her own judgment for that of the physicians. See Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir.2005); Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir.2000). No medical provider or witness, not even Dr. Steiner, the medical expert, mentioned any inconsistency between complaining of chronic, disabling back pain and appearing alert and pleasant during a visit to the doctor. In addition, we question the wisdom of penalizing a claimant for cooperating during physical evaluations. In fact a claimant’s failure to cooperate may be sufficient reason in itself to reject her testimony. See, e.g., Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir.2002) (explaining that ALJ was free to conclude that claimant’s lack of cooperation during evaluations of her physical ca-*592parity undermined the credibility of her complaints of pain).
In addition the ALJ acted improperly when she gave no weight to Goble’s limitations in daily living on the grounds the limitations were “due to pain or other subjective allegations such as numbness.” A lack of objective medical evidence does not necessarily mean that an ALJ may discredit a claimant’s subjective complaints of pain:
[T]he absence of objective medical evidence supporting an individual’s statements about the intensity and persistence of pain or other symptoms is only one factor that the adjudicator must consider in assessing an individual’s credibility and must be considered in the context of all the evidence.
SSR 96-7p,1996 WL 374186, at *6. Claims of disabling pain “based solely on the claimant’s subjective complaints” cannot be discredited simply because of a lack of objective medical confirmation, although the lack of confirmation can factor into the analysis. Parker v. Astrue, 597 F.3d 920, 922-923 (7th Cir.2010); Myles v. Astrue, 582 F.3d 672, 677 (7th Cir.2009); Villano v. Astrue, 556 F.3d 558, 562 (7th Cir.2009); Zurawski v. Halter, 245 F.3d 881, 887-88 (7th Cir.2001). Pain can be severe to the point of being disabling even though it is entirely in the claimant’s mind. Johnson v. Barnhart, 449 F.3d 804, 806 (7th Cir.2006); Sims, 442 F.3d at 537-38; Carradine, 360 F.3d at 753-54; Foote v. Chater, 67 F.3d 1553, 1560-61 (11th Cir.1995) (per curiam); Latham v. Shalala, 36 F.3d 482, 484 (5th Cir.1994); Easter v. Bowen, 867 F.2d 1128, 1130 (8th Cir.1989). Goble acknowledged that she can drive short distances, cook frozen pizza, and perform other simple tasks, but she also maintained that she cannot sit for more than 5 to 10 minutes, stand still for more than a minute, or walk more than 100 yards. A claimant’s ability to perform limited and sporadic tasks does not mean she is capable of full-time employment. See Carradine, 360 F.3d at 755; Clifford, 227 F.3d at 872; Shramek v. Apfel, 226 F.3d 809, 813 (7th Cir.2000). The ALJ did not refute Goble’s statements or explain how they are compatible with the demands of a full-time job.
The ALJ’s other reasons for rejecting Goble’s assertions of pain are also problematic. The ALJ noted, for example, that Goble worked for many years after her diagnosis of fibromyalgia. But a claimant may force herself to work for years despite suffering from fibromyalgia, see Hawkins v. First Union Corp., 326 F.3d 914, 918 (7th Cir.2003), and Goble testified how much she loved working and how hard it was for her to give it up. The ALJ also remarks several times that Goble’s condition improved while she was off of medication for a few months in Utah. Goble moved to Utah at the encouragement of her doctors in the hope that the drier climate would improve her medical condition, but she testified that she had no insurance coverage at the time and left after a few months to be closer to her children. It was questionable for the ALJ to conclude that her temporary improvement implies that she does not actually require serious narcotics. The ALJ also cited a nurse’s notation that Goble refused to set up psychotherapy or physical therapy, and a note from Dr. Iwu that she was discharged from a physical therapy program after she cancelled her appointment. The ALJ never questioned Goble about her reasons for non-participation, however, or discussed Dr. Iwu’s recommendation that she continue her physical therapy independently in a home program. Goble asserts that she discontinued physical therapy due to problems with insurance coverage. Without further information this nonparticipation cannot support the ALJ’s credibility determination.
*593We also question a decision that casts doubt on a claimant's disability due to her ability to complete "multiple application and appeal forms in detail." On remand the AU may find valid reasons to impugn Goble's credibility, but the act of applying for disability benefits should not be among them.
Gohle next contends that the AU's finding of a residual functional capacity for light work is not supported by substantial evidence. She first argues that the AU failed to explain the weight given Dr. Steiner, the medical expert. She notes that, when a treating source's opinion is not given controlling weight, an AU is required to explain the weight given to the various medical sources, see 20 C.F.R. § 404.1527(fX2)(ii). In this case the AU gave greatest weight to Dr. Steiner's conclusions for the same reason that she rejected Goble's subjective complaints of pain.-the perception that the treating physicians' observations were inconsistent with their conclusions. Accordingly, as this reasoning is improper in the credibility analysis, the relative weight of the physicians' testimony in the RFC must be reevaluated as well.
Goble also asserts that the AU disregarded ample clinical evidence of a correlation between her back disorders and her arm and hand limitations. She argues that the AU must consider the medical opinions in the record, see 20 C.F.R. § 404.1527(b), and that the AU failed to consider evidence of her arm and hand limitations provided by Dr. Kioski, Dr. Perra, and Dr. Tierney.
An AU is obligated to consider all relevant medical evidence and may not cherry-pick facts to support a finding of non-disability while ignoring evidence that points to a disability finding. Myles v. Astrue, 582 F.3d 672, 678 (7th Cir.2009). But an AU need not mention every piece of evidence, so long she builds a logical bridge from the evidence to her conclusion. Getch v. Astrue, 539 F.3d 473, 480 (7th Cir.2008).
The AU properly rejected Goble's allegations of arm and hand limitations on the ground that tests repeatedly show few neurological effects or loss of strength, grip, or range of motion. Dr. Perra and Dr. Kioski's notes would not change that analysis, as the notes are mainly Goble's self-reports of her symptoms, and in any event took place in 2003, before the alleged period of disability. Dr. Perra, for example, noted that Goble "says she has been having complaints recently" of a decreased grip, but upon physical examination found her strength normal. And contrary to Go-ble's assertion, the AU's decision did include a discussion of Dr. Tierney's finding of "give way weakness of the right extremity," even if she did not mention Dr. Tier-ney by name.
Goble also argues that the AU selectively analyzed the record of her mental impairments. She contends that the AU improperly rejected psychologist Johnson's conclusions that Goble would have difficulty working at a reasonable pace or tolerating workplace stressors. Contrary to Goble's assertion, the AU accepted her moderate difficulties with pace. The AU appropriately accommodated the limitation by restricting Goble to simple, unskilled work. See Simila v. Astrue, 573 F.3d 503, 521-22 (7th Cir.2009); Sims v. Barnhart, 309 F.3d 424, 431 (7th Cir.2002).
The AU rejected Goble's professed difficulty coping with workplace stressors, and for that conclusion the AU failed to build a logical bridge. The AU reasoned that this difficulty is "not well-supported by Psychologist Johnson's own negative mental status examination or the assessed *594GAF of 58.” But Johnson did not perceive any incompatibility with her examination, and the ALJ did not explain her disagreement. The ALJ may have penalized Goble for appearing “pleasant and cooperative” to Johnson, but if so this incompatibility is the same unsupported finding discussed in the credibility analysis. Goble earlier stated in a separate functional report that she handles stress “ok” and had no problems changing routine, but it is unclear to what extent the ALJ relied on that evidence. Furthermore, although an ALJ is not required to determine the extent of a claimant’s disability based on her GAF score, Denton v. Astrue, 596 F.3d 419, 425 (7th Cir.2010), in this case the ALJ instead relied on a misunderstanding of the GAF score. A GAF score of 58 suggests moderate difficulties in occupational functioning, and a score below 51 indicates a possible inability to keep a job. Am. Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders 32-34 (Text Revision, 4th ed.2000). Therefore the GAF score is not inconsistent with difficulty tolerating stress but rather suggests someone who may be barely above the level of being able to work or live independently.
We therefore REVERSE the denial of disability benefits and REMAND for further consideration by the agency. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480219/ | ORDER
JAMES T. MOODY, Judge.
Edward Anthony Lipscomb was tried and convicted of two counts of possessing crack cocaine with the intent to distribute it. Lipscomb raises two issues in this direct appeal, but it turns out that he got the timing wrong on both. First, Lipscomb alleges a violation of his rights under the Speedy Trial Act, 18 U.S.C. § 3161 et seq. But Lipscomb did not file a motion to dismiss the indictment prior to trial as required by the Act, and so he is too late to succeed on this claim. Second, Lipscomb argues ineffective assistance of counsel. On this claim, he is almost certainly too early — we have repeatedly asserted that ineffective assistance claims are best brought in post-conviction proceedings. But Lipscomb chose not to heed our warning. Like many before him, he is unable to establish ineffective assistance on the record available to him, and as a result of raising the issue here, the law of the case doctrine will apply should he try on a later occasion to return to this subject.
I
Between January 26 and March 5, 2007, federal officers and a confidential informant conducted five controlled buys of crack cocaine from Lipscomb. These transactions netted the government 21.9 grams of crack. On March 14, the same officers stopped Lipscomb for driving with a suspended license, a misdemeanor in Indiana. The officers searched Lipscomb’s person and discovered a plastic baggy in his pocket containing a substance later determined to be 4.6 grams of crack cocaine. The officers then executed a previously obtained search warrant at Lipscomb’s apartment, where they discovered various items related to his drug activities: 4.2 grams of crack cocaine; a small digital scale with crack cocaine residue; a knife with more residue; plastic baggies; 4.8 grams of marijuana; and a loaded handgun.
On March 21, 2007, Lipscomb was indicted by a grand jury. In a superceding *606indictment, Lipscomb was charged with five counts of distributing crack cocaine, two counts of possessing crack cocaine with the intent to distribute, one count of possessing marijuana, and one count of possessing a firearm in furtherance of a drug crime. Eventually, the government withdrew all of the charges except the two counts of possession of crack cocaine with the intent to distribute. Among the withdrawn counts were those connected to the five controlled buys.
Twice the government filed motions to continue scheduled trial sittings; the magistrate judge assigned to the case granted both motions, thereby permitting 303 days of delay. On both occasions, counsel for Lipscomb agreed to the continuances. At no point in the proceeding did defense counsel file a motion to dismiss based on the Speedy Trial Act. Lipscomb himself wrote a pro se letter to the district court asking for dismissal of the indictment on speedy trial grounds, but when the district court called a hearing, Lipscomb withdrew his request and no formal motion to dismiss was filed or ruled upon.
The district court held a two-day trial beginning on June 4, 2008. In order to avoid revealing the identity of the confidential informant, the government chose not to call him or her, and so no evidence of the controlled buys was introduced at trial. The jury reached a verdict on June 5, finding Lipscomb guilty of the two remaining counts against him.
After the verdict, at Lipscomb’s request, defense counsel moved to withdraw. Lipscomb complained that his counsel had failed to raise an entrapment defense in the trial, and he wanted new counsel for the remainder of the proceedings. It seems that Lipscomb thought that his counsel should have argued that the police’s use of the confidential informant to purchase drugs “entrapped” him into entering the drug business. It is unclear, however, why he thought that this defense had anything to do with the counts of conviction; as we noted, evidence of the controlled buys was not introduced at trial, nor was Lipscomb convicted of any conduct related to those transactions. The district court held a hearing, in which defense counsel explained that he did not pursue an entrapment defense because he believed it to be a “meritless defense.” Counsel mentioned his concern with “opening the door” and said that he saw “no drastic difference between the money exchanged and the drugs exchanged.” The former comment is straightforward enough: counsel feared “opening the door” to evidence related to the prior drug sales. Such evidence would have supported the intent-to-distribute element of the offense. We are not certain what he meant by the latter statement. One possible interpretation is that the price paid for the drugs was in line with the value of the drugs exchanged and thus would not indicate that Lipscomb was induced (that is to say, “entrapped”) into selling drugs that he otherwise would not have sold. In any event, the district court granted Lipscomb’s request and converted counsel into standby counsel for the remainder of the proceedings.
At sentencing, the government introduced evidence of relevant conduct sufficient to qualify for an offense level of 28 and a guidelines range of 78 to 97 months’ imprisonment. The district court sentenced Lipscomb to 97 months on December 28, 2007. Lipscomb appeals only from the judgment of conviction; he raises no separate arguments against his sentence.
II
A
The Speedy Trial Act requires that a defendant be brought to trial within 70 days from the later of the date when the indictment is filed or the date when the *607defendant first appears before a judicial officer with the charge pending. 18 U.S.C. § 3161(c)(1). The remedy for a violation of the Act is dismissal of the indictment. Id. § 3162(a)(2). The Act establishes both the 70-day clock and the exclusions of certain periods from it, id. § 3161(h), including time explicitly excluded for the ends of justice, id. § 3161(h)(7)(A). In order to invoke the ends-of-justice exclusion, the district court must place findings on the record supporting its decision to exclude the time. Id. See Zedner v. United States, 547 U.S. 489, 508, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006). In this case, the district court granted the government’s two motions for continuances and excluded almost ten months pursuant to the ends-of-justice exception. The court properly placed findings on the record at the time that it granted the continuances.
Lipscomb now asserts that these exclusions were in error, but we cannot entertain a Speedy Trial Act argument raised for the first time on appeal. According to the Act, “[fjailure of the defendant to move for dismissal prior to trial ... shall constitute a waiver of the right to dismissal under this section.” 18 U.S.C. § 3162(a)(2). As we said in United States v. Morgan, 384 F.3d 439, 443 (7th Cir.2004), “[t]he Act explicitly provides that a defendant’s failure to move to dismiss the indictment constitutes a waiver — not a forfeiture — of his rights under the Act ... and we may not disregard this provision.” Lipscomb never formally moved to dismiss the indictment. Although Lipscomb sent a pro se letter that sought dismissal of the case because of alleged violations of the Speedy Trial Act by the government, he withdrew that request in open court before the district court ruled on the motion, telling the judge that he had discussed the matter with counsel and had no objection to proceeding. This equivocal conduct is not enough to save his claim. We find that Lipscomb waived his Speedy Trial Act.
B
Lipscomb also contends that his conviction should be set aside because his trial counsel was ineffective. Counsel, he continues to insist, should have argued that the government entrapped him when it used the confidential informant to carry out five drug buys. As a threshold matter, we repeat our oft-given advice that claims of ineffective assistance of counsel are best reserved for post-conviction proceedings, where the defendant has the benefit of a post-conviction record on which to articulate her ineffective-assistance claim. United States v. Harris, 394 F.3d 543, 557 (7th Cir.2005). See Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). Not only are ineffective-assistance claims unlikely to prevail on direct appeal, but an adverse ruling on direct appeal reverberates on collateral review— the law of the case doctrine applies to future iterations of the ineffectiveness claim, even if new evidence is uncovered. See Harris v. United States, 366 F.3d 593, 595 (7th Cir.2004) (stating that defendant’s ineffective-assistance claim on direct appeal is binding in a § 2255 proceeding).
We raised this issue with appellate counsel at oral argument, but, perhaps seeing no alternative, he chose to press ahead. Waiting might have been preferable, because Lipscomb’s ineffective-assistance claim falls flat on this record, but on the other hand it seems likely that nothing would have made a difference. Under the test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant “must show both that his attorney’s performance was outside the range of professionally competent assistance and that the deficient performance denied him a fair trial.” United States v. Banks, 405 F.3d 559, 569 (7th Cir.2005). Defendants pursuing ineffectiveness claims must show prejudice: “a *608reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. We have no reason to address the question whether trial counsel’s performance was deficient (and thus should not be taken as implying that it was), because the weakness of this claim is apparent with respect to prejudice. Lipscomb must show that counsel’s performance would have affected the outcome, but we cannot see any way in which an entrapment defense could have helped Lipscomb — he claims that he was entrapped in the five controlled buys, but he was not charged with conduct related to any of those transactions nor did the jury hear any evidence related to those deals. In other words, Lipscomb has not shown any probability— let alone a reasonable probability — that the outcome of his trial would have been different but for counsel’s conduct.
For these reasons, we Affirm the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480220/ | MEMORANDUM **
Antonio Ruiz-Campos appeals from his guilty-plea conviction and 84-month sentence for conspiracy to distribute cocaine base and distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Ruiz-Campos’ counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480221/ | ORDER **
We reverse the order of the district court denying Plaintiffs-Appellants’ motion for a preliminary injunction.
We remand this action to the District Court for the District of Montana, with direction to enter a preliminary injunction ordering Defendants forthwith to cease implementation of the Rat Creek Salvage Project.
An opinion will follow in due course.
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/8480222/ | ORDER GRANTING AND DENYING CERTIFICATE OF APPEALABILITY
HARRIS L. HARTZ, Circuit Judge.
Gregory Paul Stephens, an Oklahoma state prisoner proceeding pro se, seeks a certificate of appealability (COA) to appeal the denial of his application under 28 U.S.C. § 2254 for habeas relief See 28 U.S.C. § 2253(c) (requiring COA to appeal denial of application). We grant his application for a COA on his claim that his due-process rights were violated when the trial court admitted testimony about statements he had made during a postarrest interrogation even though the government had discarded a tape of that interrogation. We also grant a COA on his ineffective-assistance-of-counsel claims based on failure to raise that claim adequately. But because Mr. Stephens has failed to make a substantial showing of the denial of a constitutional right with respect to his remaining claims, we deny his request for a COA and dismiss the appeal as to those claims. See id. § 2253(c)(2)
I. BACKGROUND
Mr. Stephens was convicted by a jury in Oklahoma state court of assault and battery with a dangerous weapon and unlawful possession of a firearm. On June 6, 2006, he was sentenced to consecutive sentences of 25 years’ imprisonment on the assault-and-battery charge, and 10 years’ imprisonment on the firearm-possession charge. He appealed, but the Oklahoma *799Court of Criminal Appeals (OCCA) affirmed. He then unsuccessfully sought postconviction relief in state court.
On October 27, 2008, Mr. Stephens filed his § 2254 application in the United States District Court for the Western District of OMahoma. He claimed (1) that the trial court improperly denied his motion to exclude illegally obtained evidence, (2) that the trial court erred in not granting him a second preliminary hearing with respect to his firearm-possession charge, (3) that the trial court erred in refusing to sustain a demurrer to the firearm-possession charge, (4) that he was denied a fair trial because of an evidentiary harpoon, (5) that the trial court erred in enhancing his sentence based on a stale prior conviction, (6) that the trial court erred in failing to exclude the testimony of several witnesses who were tainted by the violation of a sequestration order, (7) that the trial court erred in characterizing the firearm he possessed as a sawed-off shotgun; (8) that the trial court improperly instructed the jury on aiding-and-abetting, (9) that the trial court improperly failed to exclude statements that he had allegedly made after his arrest, (10) that his trial counsel was ineffective, and (11) that his state appellate counsel was ineffective. The district court, adopting the magistrate judge’s report and recommendation, denied his application. He now seeks a COA to appeal the rejection of all his claims for relief.
II. DISCUSSION
A. Standard of Review
A COA will issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). This standard requires “a demonstration that ... includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (internal quotation marks omitted). In other words, the applicant must show that the district court’s resolution of the constitutional claim was either “debatable or wrong.” Id.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), provides that when a claim has been adjudicated on the merits in a state court, a federal court can grant habeas relief only if the applicant establishes that the state-court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2). As we have explained:
Under the “contrary to” clause, we grant relief only if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Court has on a set of materially indistinguishable facts.
Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir.2004) (brackets and internal quotation marks omitted). Relief is provided under the “unreasonable application” clause “only if the state court identifies the correct governing legal principle from the Supreme Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. (brackets and internal quotation marks omitted). Thus, a federal court may not issue a habeas writ simply because it concludes in its independent judgment that the relevant state-court decision applied clearly established *800federal law erroneously or incorrectly. See id. Rather, that application must have been unreasonable. Therefore, for those of Mr. Stephens’s claims that the OCCA adjudicated on the merits, “AEDPA’s deferential treatment of state court decisions must be incorporated into our consideration of [his] request for [a] COA.” Doekins v. Hines, 374 F.3d 935, 938 (10th Cir.2004).
With respect to Mr. Stephens’s first eight claims, no reasonable jurist could debate the correctness of the magistrate judge’s well-supported and well-reasoned recommendations. We therefore deny his request for a COA on those claims.
Mr. Stephens’s ninth claim, however, deserves further consideration. He contends that he was denied due process by the destruction of the videotape recording of his postarrest interrogation. Ordinarily, the “failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). But due process can be violated if police bad faith caused the loss of the evidence. See id.
Mr. Stephens alleged as follows in his § 2254 application:
[Case Agent Borcherding] testified that he took a statement from the Defendant after reading his rights from a prepared card. He testified that the Defendant was fairly relaxed at that time.
On cross examination he admitted that they had written Miranda waivers at the Shawnee Police Department, [sic] but, that he did not obtain one from the Defendant. He admitted that Pottawatomie County is equipped with rooms that have video technology where they can tape interviews and that he taped the defendant’s interview. He then denied that there was a tape of the interview, claiming a malfunction of the machine. [sic] despite having previously testified under oath that he had logged the tape of the interview into evidence.
The Defendant then moved to require the State to provide the tape that they logged into evidence. The Court was made aware that there had been an order entered to provide all material that was discoverable under 22 O.S. Section 2002. And further was advised that a spoliation request in this particular case had been filed based upon the officer’s sworn testimony that the tapes were not turned over to the district attorney’s office but instead were logged into evidence of the Shawnee Police Department and had now disappeared. The Court then ordered the district attorney’s office to find the tape whether blank or not and turn it over and recessed for the day.
The parties returned the next morning whereupon the State announced that after inquiry of the detective he threw the tape away. The Defendant then reasserted his position with regard to the spoliation motion, the destruction of the tape being either negligent or intentional and because of the destruction of evidence, the Defendant sought to exclude any statements made by the Defendant during the interview. The court overruled that request.
R. at 32-33 (emphasis added, citations omitted). Although the application does not use the term bad faith, it alleges facts from which one could infer intentional conduct that could imply bad faith. In particular, the story about the tape had changed over time. First, the officer testified that the interview had been taped and the tape logged into evidence. Then the officer testified that the machine had malfunctioned and there was no tape of the interview. Then the state said that the detective (presumably the officer who had twice *801testified) said that he had thrown the tape away.
The magistrate judge’s report and recommendation rejected the due-process claim because “Mr. Stephens has not alleged or presented evidence of bad faith.” Id. at 80. (It did not rely on any procedural bar or AEDPA deference.) But Mr. Stephens is acting pro se, and we must therefore construe his pleadings liberally. See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir.2007). In our view, his § 2254 application adequately raised a claim of bad faith. Moreover, to the extent that his application was unclear in this regard, Mr. Stephens’s objection to the report and recommendation specifically “objected] to the finding of fact, that the government did not act in bad faith in destroying the tape.” R. at 103. To be sure, Mr. Stephens’s allegations may not be true; but his claim was dismissed on the pleadings, not on summary judgment, so the pleadings are presumed true. See Sunrise Valley, LLC v. Kempthorne, 528 F.3d 1251, 1254 (10th Cir.2008). Because this claim “deserve[s] encouragement to proceed further,” Slack, 529 U.S. at 484, 120 S.Ct. 1595 (internal quotation marks omitted), we grant a COA on the issue.
To the extent that Mr. Stephens asserts that his counsel was ineffective at trial and on appeal for failing to pursue his claim that the tape was destroyed in bad faith, we likewise grant a COA as to those claims. But we deny a COA on Mr. Stephens’s other ineffectiveness claims because there is no merit to the claims allegedly not pursued by counsel, so he could not have been prejudiced by any potential malpractice. We do, however, briefly address Mr. Stephens’s criticism of the state’s argument in district court that his appellate counsel was not ineffective because his trial counsel was not ineffective. He notes that “trial and appellate counsel may be both or individually ineffective standing alone.” Aplt. Br. at 3f-3g. Although this statement is true as a general proposition, the state’s argument (which was followed by the district court) was merely that counsel is not ineffective for failing to raise a nonmeritorious claim.
III. CONCLUSION
We GRANT Mr. Stephens’s request for a COA on his claim that the government destroyed the tape of his interrogation in bad faith and GRANT a COA on his ineffective-assistance claims insofar as they assert that his counsel was deficient in pursuing his tape-destruction claim. We DENY Mr. Stephens’s requests for a COA on his other claims. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480223/ | ORDER DENYING PETITION FOR REHEARING AND REHEARING EN BANC
After this court issued an order denying his request for a Certificate of Appealability to appeal the denial of his motion for relief under 28 U.S.C. § 2241, Keith Frazier filed a pro se petition for rehearing en banc. We then appointed counsel for Mr. Frazier. New counsel filed a supplemental petition for panel rehearing. At our request, the respondents submitted a response. Having reviewed these pleadings, we deny panel rehearing. We have determined, however, that substitution of the court’s original decision is appropriate. Consequently, we withdraw our prior Order and substitute the attached amended Order.
The original suggestion for rehearing en banc was circulated to all the judges of the court who are in regular active service. No judge called for a poll. Therefore, the en banc petition is likewise denied. The clerk is directed to docket the new Order denying a certificate of appealability forthwith.
ORDER DENYING CERTIFICATE OF APPEALABILITY
HARRIS L. HARTZ, Circuit Judge.
Keith Frazier is a prisoner in the custody of the Colorado Department of Corrections at the Crowley County Correctional Facility in Olney Springs, Colorado. He filed a pro se application for writ of habeas corpus under 28 U.S.C. § 2241 in the United States District Court for the District of Colorado. The district court dismissed the application and denied relief. He seeks a certificate of appealability (COA) from this court to appeal the denial of his application. See Montez v. McKinna, 208 F.3d 862, 868-69 (10th Cir.2000) (requiring a COA to appeal dismissal of habeas applica*810tion brought by state prisoner under 28 U.S.C. § 2241 or § 2254). We deny a COA and dismiss the appeal.
I. BACKGROUND
While correctional officers were conducting a prisoner count in Mr. Frazier’s prison area on May 22, 2005, he was involved in an altercation with his cellmate inside their cell. As a result of the incident he was charged with two prison disciplinary offenses — fighting and count interference. He argued that he was not guilty of either disciplinary offense because he had acted in self-defense after being attacked by his cellmate; but he was convicted of both and sentenced to 20 days in segregation. In addition, the offense made him ineligible to obtain earned-time credits for two months. The disciplinary convictions were affirmed both on administrative appeal and in state-court proceedings.
In July 2009 Mr. Frazier filed his § 2241 application in district court. Although not all his claims were framed in terms of his right to due process under the United States Constitution, he essentially contended that he had been denied due process in four respects: (1) there was insufficient evidence to convict him of the disciplinary offenses; (2) he was denied a fair hearing because he could not call certain witnesses at his administrative hearing; (3) the warden did not timely review his administrative appeal; and (4) his administrative appeal was not reviewed by the Private Prison Monitoring Unit of the Colorado Department of Corrections. (Insofar as he was claiming violations of state law alone, he was not entitled to relief under § 2241. See Montez, 208 F.3d at 865.) He argued that the allegedly erroneous disciplinary convictions resulted in a loss of earned-time credits and other “potential collateral consequences.” R. at 25. His requested relief was an order expunging the disciplinary convictions “so that he can recover ‘earned-time’ credits against his sentence that he has lost.” Id.
The district court denied Mr. Frazier’s application. It concluded that he could not obtain habeas relief because even if his contentions were meritorious, he would not be entitled to immediate or speedier release. The district court denied Mr. Frazier’s request to reconsider.
II. DISCUSSION
Because Mr. Frazier was denied a COA by the district court, he may not appeal the district court’s decision absent a grant of a COA by this court. See Montez, 208 F.3d at 868-69. A COA will issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a demonstration that ... includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (internal quotation marks omitted). If the application was denied on procedural grounds, the applicant faces a double hurdle. Not only must the applicant make a substantial showing of the denial of a constitutional right, but he must also show “that jurists of reason would find it debatable ... whether the district court was correct in its procedural ruling.” Id. “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the ease, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.” Id.
An application for habeas relief may be granted only “when the remedy *811requested would result in the prisoner’s immediate or speedier release from ... confinement.” Boutwell v. Keating, 399 F.3d 1203, 1209 (10th Cir.2005). Mr. Frazier contends that the district court erred in concluding that the disciplinary proceedings did not affect the duration of his sentence. He argues that both the denial of earned-time credits and other potential collateral consequences from his disciplinary convictions — such as the denials of release on parole, transfer to community corrections, and sentence reconsideration— resulted in a longer period of incarceration.
We agree with Mr. Frazier that earned-time credits would reduce the time he must serve on his sentence. But due process under the United States Constitution protects against deprivation of earned-time credits only if Mr. Frazier had a protected liberty interest in those credits. And he has no such interest because the award of earned-time credits is within the discretion of prison authorities. See Fogle v. Pierson, 435 F.3d 1252, 1262 (10th Cir.2006). Accordingly, Mr. Frazier cannot base his due-process claim on his loss of eligibility for earned-time credits.
As for the potential collateral consequences of which Mr. Frazier complains, we have recognized that “the connection between a disciplinary decision and the length of a prisoner’s sentence may be sufficient to establish a liberty interest when the prisoner establishes that the decision was the only factor that lengthened the sentence.” Wilson v. Jones, 430 F.3d 1113, 1119 (10th Cir.2005). But Mr. Frazier has not shown that the denial of his release on parole, placement in community corrections, or sentence reconsideration was the result of his disciplinary convictions. Indeed, he concedes that no reason was given for any of these denials.
III. CONCLUSION
Because no reasonable jurist could debate whether Mr. Frazier’s application ought to have been granted, we DENY his request for a COA and DISMISS his application. We GRANT his motion to proceed informa pauperis. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480224/ | OPINION
WEIS, Circuit Judge.
This appeal is centered on the “public use” requirement for the governmental taking of private property. The appeal presents a number of overlapping and interrelated claims set out in a ten count complaint. We conclude that the District Court’s judgment in favor of the governmental entry should be affirmed.
Plaintiff RLR Investments, LLC, a motor freight company, owns property in the Town of Kearny, New Jersey. In December 2000, defendants Town of Kearny and others (“defendants”) adopted a resolution designating the plaintiffs property as “in need of redevelopment.” Defendants planned to convert a portion of the town, which contained the plaintiffs property, into “a home improvement store, associated garden center and general retail [area], which may include a pharmacy, supermarket and/or casual dining restaurant or [coffee shop].”
In preparation for the redevelopment, defendants, in March 2008, entered the plaintiffs property and “conducted ... environmental tests ..., including drilling and excavation, performing soil borings, removing soil and earth, collecting soil and groundwater samples, and investigating the subsurface soil, rock and groundwater conditions.”
In June 2008, plaintiff filed an amended complaint against defendants alleging multiple federal and state law claims challenging, among other things, the entry onto the property, the environmental testing, and the designation of the land as “in need of redevelopment.” Defendants filed motions to dismiss pursuant to Rules 12(b)(1) and 12(b)(6). The District Court determined that the federal counts should be dismissed and declined to exercise supplemental jurisdiction over the asserted violations of state law. In the interest of clarity we will discuss each count seriatim.
I.
Count one alleged that New Jersey’s Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 to -49, violated the takings clauses of the United States *86and New Jersey constitutions. The challenged statute permits the “municipality or designated redevelopment entity [to] ... [e]nter upon ... property in any redevelopment area in order to conduct investigations or make surveys, sound or test bor-ings necessary to carry out the purposes of this act.” 40A:12A-8h.
Plaintiff contends that the law is facially unconstitutional because the “legislature cannot authorize entry onto land that amounts to an uncompensated taking of private property, nor can it authorize entry onto land that amounts to a taking of private property that is not for a public purpose.” In addition, plaintiff argues that the law is unconstitutional as-applied to the plaintiffs property.
A. Facial Challenge Under the Federal Constitution — Public Purpose
Plaintiff argues that the District Court erroneously dismissed this portion of count one. This claim is ripe for adjudication, see Carole Media LLC v. New Jersey Transit Corp., 550 F.3d 302, 307-08 (3d Cir.2008), but dismissal was proper.
The federal takings clause does not “prohibit the taking of private property, but instead places ... condition^] on the exercise of that power.” First English Evangelical Lutheran Church of Glendale v. Los Angeles County, Ca., 482 U.S. 304, 314, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987). Specifically, private property cannot be taken unless there be a “public purpose” for the taking and “just compensation” be paid. U.S. Const. Amend. V.
State legislatures have “broad latitude in determining what public needs justify the use of the takings power,” Kelo v. City of New London, 545 U.S. 469, 483, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005), and courts give “great respect” to those determinations, id. at 482, 125 S.Ct. 2655 (citation omitted). The public use requirement is satisfied “where the exercise of the eminent domain power is rationally related to a conceivable public purpose.” Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 241, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984).
New Jersey enacted its Local Redevelopment and Housing Law to alleviate “conditions of deterioration” and to “promot[e] the physical development that will be most conducive to the social and economic improvement of the State and its several municipalities.” N.J.S.A. 40A:12A-2.
Before the government may enter property and conduct the type of surveying and testing challenged by plaintiff, there must have been a designation of an area in need of redevelopment and a redevelopment plan adopted. N.J.S.A. 40A:12A-8. The redevelopment process may include
“clearance, replanning, development and redevelopment; the conservation and rehabilitation of any structure or improvement, the construction and provision for construction of residential, commercial, industrial, public or other structures and the grant or dedication of spaces as may be appropriate or necessary in the interest of the general welfare for streets, parks, playgrounds or other public purposes.”
N.J.S.A. 40A:12A-3.
New Jersey’s Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-8h, on its face, does not permits the entry onto and testing of private property without a justifying public purpose. The entry, surveying, and/or testing must be “necessary to carry out the purposes of th[e law,]” id., and, given the statutory scheme and latitude legislatures possess in determining a public purpose, we conclude the activities authorized by the law are “rationally related to a conceivable public purpose[,]” see Midkiff, 467 U.S. at 241, 104 S.Ct. 2321, *87and thus satisfy the federal constitution’s public use requirement.
B. As-Applied Challenge Under The Federal Constitution—
Public Purpose
Plaintiff contends that as-applied to its property, N.J.S.A. 40A:12A-8h authorized a non-public taking in violation of the federal takings clause. The claim is ripe for adjudication, see Carole Media LLC, 550 F.3d at 307-08, and was properly dismissed.
The District Court determined that even if the entry and environmental testing constituted a taking, those actions were done for a public purpose: to ensure that the plaintiffs land was viable for the defendants’ redevelopment plans.
The Supreme Court has held that the public use clause is not violated where a town takes private land to promote economic development it “believes will provide appreciable benefits to the community.” Kelo, 545 U.S. at 483-84, 125 S.Ct. 2655. The entry statute, as-applied to the plaintiffs property, did not violate the public purpose portion of the federal takings clause.
C. Claims Under The New Jersey Constitution
The District Court chose not to exercise supplemental jurisdiction over the plaintiffs state law claims. See 28 U.S.C. § 1367(c)(3). Therefore, we will not review the dismissal of claims brought pursuant to New Jersey law.
II.
In count two, plaintiff alleged that a portion of New Jersey’s Eminent Domain Act violated the takings clauses of the United States and New Jersey constitutions. The challenged portion of the Act allows a condemnor, before the commencement of any condemnation proceeding, to “enter upon any property which it has the authority to condemn for the purpose of making studies, surveys, tests, soundings, borings and appraisals.” N.J.S.A. 20:3-16.
Plaintiff avers that the law is facially unconstitutional because the “legislature cannot authorize entry onto land that amounts to an uncompensated taking of private property, nor can it authorize entry onto land that amounts to the taking of private property that is not for public use.” In addition, plaintiff contends that the law is unconstitutional as-applied to its property-
On appeal, plaintiff argues that the District Court erroneously dismissed count two in regard to the public use portions of the federal and state constitutions. We conclude that the District Court did not err in dismissing the federal contentions in count two. We decline to address the claims raised under the New Jersey constitution.
III.
In count three, plaintiff alleged that “[t]he [2008] entering of [its] property to conduct ... environmental investigation activities [wa]s a taking that violate[ed] the public use clauses of the United States and N.J. Constitution” and New Jersey’s Blighted Area Clause, N.J. Const. Art. VIII, § 3, ¶ 1. According to plaintiff, its property was not blighted and thus “the only purpose the taking serves is to take property from one private party for the benefit of another private party.”
A. United States Constitution— Public Use
Plaintiff is correct that its federal public use claim is ripe for adjudication. See Carole Media LLC, 550 F.3d at 307-*8808. Dismissal was nevertheless proper. The ripeness of a public use claim “is distinct from the issue of whether [a plaintiff] alleged sufficient facts on the merits to survive a motion to dismiss under Rule 12(b)(6).” Id. at 308.
The federal constitution does not prohibit the taking of private property. The District Court correctly determined the entry onto the plaintiffs property and subsequent environmental testing, even if a taking, were done for a public purpose: economic development. See Kelo, 545 U.S. at 483-84,125 S.Ct. 2655.
Plaintiff has alleged that its property is fully productive and not blighted, but that does not alter the analysis under the federal public use clause. See id. at 482, 125 S.Ct. 2655 (finding a public purpose even though the city was “not confronted with the need to remove blight”); see also Berman v. Parker, 348 U.S. 26, 33-36, 75 S.Ct. 98, 99 L.Ed. 27 (1954) (where a public purpose exists, a non-blighted, individual property may be included in the taking of a larger, blighted area).
Also immaterial to the federal public use analysis are the plaintiffs arguments about the propriety of the determination that the property was blighted under New Jersey law and New Jersey’s requirement that only blighted property may be taken for a public purpose. States may provide greater restrictions on the use of eminent domain than those afforded under the federal constitution. Dahlen v. Shelter House, 598 F.3d 1007, 1012 (8th Cir.2010). However, “[t]he Fifth Amendment’s test for whether a taking was done without a justifying public purpose does not incorporate state law definitions of the term ‘public purpose.’ ”
Plaintiff, therefore, failed to state a public use claim under the United States constitution.
B. New Jersey Constitutional Claims
We do not address claims raised under the New Jersey constitution.
IV.
Count four, titled “Declaratory Relief[,]” alleged that defendants did “not have the authority to condemn [the] plaintiffs property[ and their] entry was unlawful.” Because the property was not blighted under New Jersey law, plaintiff asserts that without a valid redevelopment determination, the entry and subsequent surveying and testing violated not only New Jersey’s Eminent Domain Act, but also the takings clauses of the federal and state constitutions as well as New Jersey’s Blighted Area Clause.
Plaintiff argues that this count was erroneously dismissed. As we previously explained, the defendants’ actions did not violate the public use component of the federal takings clause. State law definitions and determinations of blight do not affect the federal analysis here. Accordingly, we agree with the dismissal of this count. We do not address the alleged violations of state law.
V.
Count five alleged that the property “is not blighted” and that “[t]he designation of ... [the] property as in need of redevelopment and subject to eminent domain is not supported by substantial evidence, is based on a net opinion, and is in violation of [the Blighted Areas Clause] of the New Jersey Constitution.” We do not review this state law count.
VI.
Count six alleged that defendants violated the due process clause of the Fifth Amendment to the United States constitu*89tion by failing to provide plaintiff notice and an opportunity to be heard in the year 2000 on the issue of whether its property was in need of redevelopment. The District Court did not rule on this count, and plaintiff argues that dismissal was error. According to plaintiff, this claim is “separate and distinct from [its] Public Use elaim[s,]” and the lack of notice resulted in a “final and concrete” designation of blight.
In the eminent domain context, the federal constitution’s due process clause is satisfied so long as property “owners [have] reasonable notice and [the] opportunity to be heard before the final determination of judicial questions that may be involved in the condemnation proceedings — e.g., ... whether the taking is for a public purpose.” Georgia v. City of Chattanooga, 264 U.S. 472, 483, 44 S.Ct. 369, 68 L.Ed. 796 (1924) (emphasis supplied).
In City of Chattanooga, the Court explained that the state of Georgia, as property owner, was not deprived of due process even though it lacked “the opportunity to be heard before the passage of [an] ordinance” subjecting its property to eminent domain. Id. at 483, 44 S.Ct. 369. The Court concluded that the owner had the ability to present its objections and defenses in state court before the property was finally condemned and was thus provided a “plain, adequate, and complete remedy.” Id., compare Brody v. Village of Port Chester, 434 F.3d 121 (2d Cir.2005) (procedural due process violated where notice inadequate to alert owner to exclusive mechanism to challenge the determination of public use and the time to use that process had expired).
In this case, the notice required by the federal Constitution is supplied by New Jersey.
The state’s law requires a proper designation of “in need of redevelopment,” which is synonymous with the term “blight.” Harrison Redevelopment Agency v. DeRose, 398 N.J.Super. 361, 942 A.2d 59, 79 (N.J.Super.Ct.App.Div.2008). The designation is “binding and conclusive upon all persons affected by the determination!,]” N.J.S.A. 40A:12A-6b(5), and “means that the government’s acquisition of property in the redevelopment area shall be treated as a legitimate ‘public purpose’ for purposes of [New Jersey] constitutional takings law[,]” DeRose, 942 A.2d at 80. Receiving notice and an opportunity to be heard on such a designation is, therefore, critical.
New Jersey property owners who receive adequate notice that their land has been deemed to be “in need of redevelopment” and desire to object to that determination must do so promptly. See DeRose, 942 A.2d at 90; see also N.J.S.A. 40A:12A-6. However, to “ensure[ ] that [its] ... laws pass muster under the Due Process Clause of the Federal Constitution!,]” DeRose, 942 A.2d at 63, New Jersey permits those that do not receive sufficient notice (the situation plaintiff has alleged) “to challenge the validity of a municipal determination that his or her property is in need of redevelopment, or is necessary to accomplish the redevelopment of nearby premises, through the assertion of a defense in an eminent domain action!,]” id. at 90.
The plaintiffs argument that the alleged lack of notice resulted in a “final and concrete” designation of blight is, therefore, not correct. Plaintiff may still challenge the “in need of redevelopment” finding in any future condemnation proceeding. Therefore, the federal due process clause has not been violated.
VII.
Count seven alleged a due process violation under New Jersey law. We do not address this state law claim.
*90VIII.
In count eight, titled “Declaratory Relief,]” plaintiff averred that “[djefedants had no right to enter [the] plaintiffs property under N.J.S.A. 40A:12A-8h because the designation of [the] plaintiffs property as one in need of redevelopment was unconstitutional and was not supported by substantial evidence.” According to plaintiff, “[t]he statutory predicate to the right of entry under the Local Redevelopment and Housing Law was not satisfied.” We do not address this alleged violation of New Jersey law.
IX.
Count nine asserted that the defendants’ actions were arbitrary, capricious, and unreasonable because their “designating [the] plaintiffs property as one in need of redevelopment, creating and adopting a redevelopment plan, designating a redevel-oper for [the] plaintiffs property and approving and executing a Redeveloper Agreement all occurred without adequate prior or contemporaneous notice to ... plaintiff and an opportunity to be heard.” The federal due process clause was not violated, and we decline to address the assertion that the defendants’ conduct was improper under state law.
X.
In count ten, plaintiff alleged a violation of New Jersey’s Eminent Domain Act. We will not address this state law claim.
XI.
Our extensive review of the plaintiffs amended complaint, arguments on appeal, and the law has convinced us that the District Court’s dismissal of the plaintiffs federal claims was not error. Supplemental jurisdiction was not exercised.
Accordingly, the judgment in favor of the defendants will be affirmed. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480225/ | OPINION
SLOVITER, Circuit Judge.
Appellant Randy Dixon pled guilty to three counts related to the robbery of a parking lot in Philadelphia. Dixon’s counsel filed a brief under Anders v. Califor*98nia, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), seeking to withdraw as counsel. Although “[a] copy of [his] counsel’s brief was furnished” to Dixon and he was “given time to raise any non-frivolous arguments in a pro se brief[,]” he did not file a brief arguing that a non-frivolous ground for appeal existed. Appellee’s Br. at 19. We will affirm the District Court’s judgment and grant counsel’s motion to withdraw.
I.
Dixon, along with two co-conspirators, robbed the owner of a parking lot in Philadelphia, where Dixon was employed. Dixon advised his co-conspirators when the owner was in possession of the proceeds from the previous weekend’s business, and, using that tip, Dixon’s co-conspirators robbed the owner at gun point and grabbed approximately $16,700. All three conspirators were later apprehended. The judgment states that Dixon pled guilty to conspiracy to interfere with commerce by robbery, interference with commerce by robbery, aiding and abetting those crimes, and using and carrying a firearm during and in relation to a crime of violence.
II.
Under Anders, if, after review of the district court record and a conscientious investigation, counsel is convinced that the appeal presents no issue of arguable merit, counsel may ask to withdraw while filing a brief referring to anything in the record that might arguably support the appeal. 386 U.S. at 741-45, 87 S.Ct. 1396. In an Anders case, appellant’s counsel must “satisfy the court that he or she has thoroughly scoured the record in search of appeal-able issues” and then “explain why the issues are frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir.2000) (internal citation omitted).
To fulfill our obligation to decide whether to accept counsel’s Anders brief and permit counsel to withdraw, we review not only the brief itself but the record on appeal, including the colloquy held by the district court to determine whether the guilty plea was entered knowingly and voluntarily, and whether the defendant’s waiver of his right to indictment was knowing and voluntary. Here, counsel’s Anders brief refers us to four arguably non-frivolous issues and explains why each is a frivolous ground for appeal.
A. District Court’s Acceptance of Dixon’s Guilty Plea
The first potential argument identified by Dixon’s attorney is whether the District Court erred in accepting his guilty pleas. Inasmuch as there was no objection to the plea colloquy from Dixon or counsel, the defendant must show that an error was committed, that the error was clear or obvious, and that the error affected the defendant’s substantial rights. United States v. Goodson, 544 F.3d 529, 539 (3d Cir.2008) (internal citation omitted) (setting forth plain error standard of review).
Under Federal Rule of Criminal Procedure 11(b)(1),
[bjefore the court accepts a plea of guilty ... the defendant may be placed under oath, and the court must address the defendant personally in open court. During this address, the court must inform the defendant of, and determine that the defendant understands, [among other things,] the following:
(A) the government’s right, in a prosecution for perjury or false statement, to use against the defendant any statement that the defendant gives under oath;
*99(B) the right to plead not guilty, or having already so pleaded, to persist in that plea; ...
(E) the right at trial to confront and cross-examine adverse witnesses, to be protected from compelled self-incrimination, to testify and present evidence, and to compel the attendance of witnesses;
(F) the defendant’s waiver of these trial rights if the court accepts a plea of guilty[;] ...
(M) in determining a sentence, the court’s obligation to calculate the applicable sentencing-guideline range and to consider that range, possible departures under the Sentencing Guidelines, and other sentencing factors under 18 U.S.C. § 3553(a)....
Dixon’s counsel acknowledges that the District Court failed to advise Dixon of these matters at the plea colloquy and that this was “clear error.” Appellant’s Br. at 16. We agree. We emphasize the necessity of the District Court’s adherence to the requirements of Rule 11, which, as our court has previously held, “is designed to assist the district judge in making the constitutionally required determination that a defendant’s guilty plea is truly voluntary.” United States v. Lessner, 498 F.3d 185, 193 (3d Cir.2007). In Lessner, we quoted the Supreme Court’s statement that compliance with Rule 11 assists in producing “a complete record at the time the plea is entered of the factors relevant to this voluntariness determination.” McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). Nevertheless, we agree that the error did not amount to a violation of Dixon’s substantial rights. Dixon admitted that he committed each element of his crimes in open court. Dixon was aware of the charges against him, the penalties that he faced, and the evidence that would be offered against him.
To ascertain whether Dixon was prejudiced by the District Court’s errors of omission, we focus on whether the defendant can show “ ‘a reasonable probability that, but for the error, he would not have entered the plea.’ ” United States v. Hall, 515 F.3d 186, 194 (3d Cir.2008) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)). After reviewing the record, and given that Dixon has not sought to withdraw his plea even after being served with counsel’s brief which contained the missing portions of the plea colloquy, we agree it would be frivolous to argue that the error seriously compromised “the fairness, integrity, or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (internal quotations and citation omitted) (describing plain error standard).
B. Ineffective Assistance of Counsel
The second and third issues identified by Dixon’s counsel relate to potential claims of ineffective assistance of counsel. However, such claims are considered on direct appeal only when the record before the District Court has been sufficiently developed. See United States v. Thornton, 327 F.3d 268, 271 (3d Cir.2003) (“It has long been the practice of this court to defer the issue of ineffectiveness of trial counsel to a collateral attack.”). We therefore do not reach these issues on this appeal.
C. Reasonableness of Sentence
Lastly, Dixon’s counsel identifies as a potential argument on appeal that the sentence imposed by the District Court was unreasonable. The District Court imposed on Dixon a sentence of 125 months, *100followed by five years supervised release. That term of imprisonment was the lowest within-guidelines sentence the District Court could have imposed. Insofar as district courts are afforded broad discretion in fashioning sentences, see United States v. Tomko, 562 F.3d 558, 561 (3d Cir.2009) (en banc), we would have no reason to disturb Dixon’s sentence.
III.
For the foregoing reasons, we agree with counsel that no non-frivolous issues for appeal exist in this case. Accordingly, we will affirm the District Court’s judgment of conviction and sentence and grant counsel’s motion to withdraw. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480226/ | OPINION
CHAGARES, Circuit Judge.
Appellants Shango Allick, Marcelino Garcia, Carolyn Urgent, Isaiah Fawkes, and Christopher Alfred challenge the District Court’s denial of their motions to dismiss the indictments against them based on double jeopardy. On April 15, 2008, another panel of this Court vacated an earlier order of the District Court denying the appellants’ motions to dismiss, remanding the case for an evidentiary hearing to address gaps in the record that precluded us from determining whether double jeopardy barred reprosecution. United States v. Allick, 274 Fed.Appx. 128 (3d Cir.2008). With the benefit of the evidence developed in that evidentiary hearing, held on June 16, 2008, we will now affirm the decision of the District Court.
I.
Because our earlier opinion set forth the factual background and complicated procedural history in detail, we will only briefly summarize the facts relevant to the instant appeals. In 2005, the appellants, along with eleven other co-defendants, were indicted for conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(a) and (h) (the “2005 indictment”). The appellants and four of their co-defendants proceeded to trial. The trial was presided over by the Honorable Raymond L. Finch, then-Chief Judge of the District *102Court of the Virgin Islands, and lasted from January 31, 2006 to February 17, 2006. Following closing arguments on February 17, the jury began deliberations but was dismissed mid-day for the holiday weekend. The jury continued deliberations on February 21, 2006 and, during deliberations on February 22, sent three notes to the judge, each requesting additional evidence or a re-reading of instructions. After receiving each note, the judge consulted with counsel on the record and in open court before responding to the jury’s requests. On February 24, 2006, the jury sent a fourth and final note to the judge. It stated: “after considerable deliberation we the jurors of this case are presently in a deadlock. We await further instructions.” Appendix (“App.”) 2.
Judge Finch then met with the Government and counsel for most of the defendants in his chambers. This in-chambers conference was not recorded, and formal appearances were not entered. At the evidentiary hearing held on June 16, 2008, however, Judge Finch and several of the attorneys who were present testified concerning the substance of the in-chambers conference. Counsel for all of the appellants except Fawkes were present, and the attorney representing Allick “sat in ... on behalf of ... Fawkes.” App. 142 (question posed by counsel for Fawkes during cross-examination of Judge Finch). None of the defendants was present during the in-chambers conference.
During this in-chambers conference, counsel for Urgent requested that Judge Finch declare a mistrial. App. 113-14 (testimony of counsel for Urgent). At the evidentiary hearing, counsel for Urgent recalled telling Judge Finch “this is the third time they’ve indicated they had a weekend to think this over, and I’m sure they’re not going to reach a decision” and “let’s live to fight another day.” App. 131. None of the attorneys present during the conference objected to this suggestion or offered any alternatives to declaring a mistrial, see App. 115 (testimony of counsel for Urgent), 139 (testimony of Judge Finch), 157 (same), 220-21 (testimony of counsel for Alfred), despite having an opportunity to do so, see App. 154 (testimony of Judge Finch).
Shortly after the in-conference chambers, Judge Finch re-entered the courtroom and requested that the jury be recalled. Judge Finch then asked the jury foreperson whether “this note, with respect to your inability to reach a verdict, applies to all defendants and all charges?” App. 306. The foreperson responded, ‘Tes, it applies to all defendants.” Id At this point, Judge Finch declared a mistrial: “Very well. Counsel, there being nothing else, I will declare a mistrial.” Id. Judge Finch then thanked and dismissed the jury, addressed several minor issues, and then adjourned. App. 306-07. At no point during this on-the-record exchange did counsel for any of the defendants object, request a conference outside the presence of the jury, or in any other way seek to prevent the declaration of a mistrial.
After Judge Finch scheduled a date for the re-trial, several of the defendants, including appellants Allick, Garcia, and Urgent, moved to dismiss the 2005 indictment based on double jeopardy. On June 14, 2007, a grand jury returned another indictment against the defendants (the “2007 indictment”). Following the return of the 2007 indictment, the government moved to dismiss the 2005 indictment without prejudice. Appellants Urgent and Fawkes opposed this motion, but the District Court never addressed the motion. Thereafter, appellants Urgent, Allick, and Garcia moved to dismiss the 2007 indictment based on double jeopardy.
*103Judge Finch initially issued an order dismissing the 2005 indictment based on double jeopardy, but he ultimately vacated this order and recused himself from further proceedings related to both the 2005 indictment and the 2007 indictment. Both cases were subsequently assigned to the Honorable Anne E. Thompson, United States District Judge for the District of New Jersey.
On October 31, 2007, Judge Thompson denied the defendants’ motions to dismiss the 2005 and 2007 indictments, a decision that was subsequently appealed. By order dated April 15, 2008, we vacated and remanded for an evidentiary hearing. Following the hearing, Judge Thompson issued an order, dated October 6, 2008, denying appellants’ motions to dismiss based on a finding that counsel had impliedly consented to the mistrial declaration by failing to object despite being given the opportunity to do so. She also rejected appellants’ argument that counsel were denied an opportunity to consult with their clients before a mistrial was declared. In the same order, Judge Thompson granted the motion of one co-defendant whose attorney had not been present during the in-chambers conference. Appellants timely appealed.
II.
We have jurisdiction to review these appeals pursuant to the collateral order doctrine. See Abney v. United States, 431 U.S. 651, 659, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); United States v. Venable, 585 F.2d 71, 74 (3d Cir.1978). We accept the District Court’s factual findings unless clearly erroneous, see United States v. Lara-Ramirez, 519 F.3d 76, 83 (1st Cir. 2008), and we exercise plenary review over the District Court’s legal conclusions. See United States v. Rigas, 605 F.3d 194, 203 n. 7 (3d Cir.2010) (en banc).
III.
The appellants raise two lines of argument. First, the appellants argue that they were not given an adequate opportunity to object to the mistrial. Second, appellants Urgent and Allick argue that they were deprived of the right to be present and to be consulted when the decision to declare a mistrial was made.
A.
The Double Jeopardy Clause “forbids that ‘any person be subject for the same offence to be twice put in jeopardy of life or limb.’ ” United States v. Rivera, 384 F.3d 49, 53 (3d Cir.2004) (quoting U.S. Const, amend. V). Relevant here, it protects “the defendant’s valued right to have his trial completed by a particular tribunal.” Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949). But that right “must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.” Id. One such instance is when “manifest necessity” requires that a mistrial be declared before the verdict is given. “[T]he classic basis for a proper mistrial,” in turn, is a deadlocked jury. Arizona v. Washington, 434 U.S. 497, 509, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978); see also United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824). A trial court has broad discretion to find that the jury is hopelessly deadlocked, and so long as it properly exercises that discretion, its consequent determination of manifest necessity generally will not risk barring reprosecution. See United States v. Wecht, 541 F.3d 493, 504-10 (3d Cir.), cert. denied, — U.S. -, 129 S.Ct. 658, 172 L.Ed.2d 616 (2008).
The manifest necessity doctrine only governs, however, if the mistrial is de-*104dared over the defendant’s objection or without his consent. Where the defendant consents to or requests the mistrial, manifest necessity is not required to enable reprosecution. See United States v. Dinitz, 424 U.S. 600, 607, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); United States v. Tateo, 377 U.S. 463, 467, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964); Love v. Morton, 112 F.3d 131, 133, 138 (3d Cir.1997). Such circumstances evince “a deliberate election on [the defendant’s] part to forgo his valued right to have his guilt or innocence determined before the first trier of fact.” United States v. Scott, 437 U.S. 82, 93, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978). Consent need not be express, but may be implied. Love, 112 F.3d at 138-39.
In Love, we held that a defendant’s failure to object to a court’s mistrial declaration may constitute implied consent to the mistrial, but that “we will not infer consent from defense counsel’s silence unless there was some opportunity to object.” 112 F.3d at 138. We made clear that such an opportunity must be “meaningful.” Id.; see also United States v. Lara-Ramirez, 519 F.3d 76, 83 (1st Cir.2008) (“Consent may sometimes ‘be implied from a defendant’s acts or failures to act, such as where the defendant sits silently by and does not object to the declaration of a mistrial even though he has a fair opportunity to do so.’” (quoting United States v. Toribio-Lugo, 376 F.3d 33, 40 (1st Cir.2004))). Moreover, because “close cases regarding the propriety of a mistrial ‘should be resolved in favor of the liberty of a citizen,” Love, 112 F.3d at 138 (quoting United States ex. rel. Russo v. Superior Court of N.J., Law Div., 483 F.2d 7, 17 (3d Cir.1973)), we explained that “we must proceed with caution in inferring consent from counsel’s failure to object.” Id.
Unlike Love, in this case counsel for the appellants were given ample opportunity to object to the declaration of a mistrial or suggest alternative courses of action. In fact, the suggestion to declare a mistrial did not come from Judge Finch; rather, counsel for Urgent requested that he declare a mistrial. See App. 113-14, 131. During the in-chambers conference, counsel had the opportunity to object to this suggestion, voice any potential concerns, suggest alternative options, or request time to confer with their clients. Despite this opportunity, none of the attorneys present during the conference made any effort to object. Counsel had an additional opportunity to object during the in-court proceedings when Judge Finch queried the jury foreperson and then declared a mistrial. Judge Thompson did not commit clear error in interpreting the evidence developed at the evidentiary hearing regarding the circumstances of the in-chambers conference and the subsequent mistrial declaration. Under these circumstances, we conclude that the appellants had a meaningful opportunity to object to the mistrial, and that their failure to do so amounted to their implied consent. Accordingly, the Double Jeopardy Clause does not bar reprosecution of the appellants.
B.
Appellants Urgent and Allick also argue that they were not present during the in-chambers conference nor consulted regarding the decision to declare a mistrial. The Supreme Court has recognized four fundamental choices that a criminal defendant must always make. Jones v. Barnes 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983); see Virgin Islands v. Weatherwax, 77 F.3d 1425, 1433 (3d Cir.1996). Although we have not addressed this specific issue, other courts of appeals have consistently held that the decision to request or consent to a mistrial is a strategic decision that ultimately rests with counsel. See United States v. Chap*105man, 593 F.3d 365, 369 (4th Cir.2010) (concluding that “decisions regarding a mistrial are tactical decisions entrusted to the sound judgment of counsel, not the client”); United States v. Burke, 257 F.3d 1321, 1324 (11th Cir.2001) (decision not to request a mistrial is a “tactical decision entrusted to defense counsel, binding the defendant even when the defendant expressed a contrary wish to his lawyer”); United States v. Washington, 198 F.3d 721, 723-24 (8th Cir.1999) (requesting a mistrial is a non-fundamental strategic decision); Watkins v. Kassulke, 90 F.3d 138, 143 (6th Cir.1996) (holding that where “defense counsel consents as a matter of trial strategy to a mistrial, that consent binds the defendant ..., regardless of whether the defendant participates in the decision.”); Galowski v. Murphy, 891 F.2d 629, 639 (7th Cir.1989) (“The decision whether to move for a mistrial or instead to proceed to judgment with the expectation that the client will be acquitted is one of trial strategy.”). In addition, Federal Rule of Criminal Procedure 43 provides that a defendant’s presence is not required at a “conference or hearing on a question of law.” Fed.R.Crim.P. 43(b)(3); see Faretta v. California, 422 U.S. 806, 819 n. 15, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (holding that Rule 43 did not require defendant’s presence at in-camera interview of jurors). Trial counsel had the authority to object to the suggestion that a mistrial be declared during the in-chambers conference held without the defendants present. Their failure to do so supports our conclusion that the appellants consented to the mistrial.
IV.
For the foregoing reasons, we will affirm the decision of the District Court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480227/ | OPINION
TASHIMA, Circuit Judge.
Barry Wright appeals from the District Court’s order affirming the decision of the Commissioner of Social Security (“Commissioner”) denying Wright’s application for Social Security Disability Insurance Benefits and Supplemental Security Income. We will affirm.1
I.
Our review is limited to determining whether substantial evidence supports the Commissioner’s decision to deny benefits. 42 U.S.C. § 405(g). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). If the Commissioner’s findings of fact are supported by substantial evidence, such findings are binding. Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir.2000).
Because the parties are familiar with the facts and procedural history of the case, we describe them only briefly. Wright is a *10759-year-old man with a GED and an associate’s degree in small business management. (Tr. 28, 217.) He has work experience as a longshoreman. (Tr. 105-13.) In July 2005, while working as a longshoreman, equipment Wright was operating caught on fire. (Tr. 121, 213-14, 251.) Wright sustained no physical injuries, but sought treatment for anxiety and nervousness at the Pennsylvania Hospital emergency room. (Tr. 44, 167-69.) He received treatment from Harry Doyle, M.D., whose records cover August 2005 to May 2007. (Tr. 56, 222-56.)
Wright applied for benefits on May 30, 2006, alleging disability since July 28, 2005, due to post-traumatic stress disorder (“PTSD”) resulting from the workplace fire. (Tr. 93-104.) After his application was denied on August 24, 2006, Wright sought a hearing before an Administrative Law Judge (“ALJ”). (Tr. 65, 71.)
At the September 13, 2007, hearing, the ALJ heard testimony from Wright, vocational expert Bruce Martin, and medical expert Richard Saul, M.D. (Tr. 11, 20.) Wright was represented by an attorney. (Id.)
At the hearing, Wright testified that he lives at his brother’s house, where he does his own laundry and cleans up after himself. (Tr. 38.) Wright testified that during the day he watches TV and smokes cigarettes. (Tr. 39.) Wright testified that his “life is not going good right now,” that he is “stressed out a lot,” that he is “almost going out of [his] mind,” that “people tick [him] off easily,” and that he is “just all messed up.” (Tr. 40.)
The ALJ found that Wright’s statements about the intensity, persistence, and effects of his symptoms were not entirely credible. (Tr. 15.) The ALJ determined that Wright was “not disabled” because he was “capable of making a successful adjustment to other work that exists in significant numbers in the national economy.” (Tr. 18.)
The Appeals Council affirmed the ALJ’s decision on June 26, 2008. (Tr. 1). Wright then sought review in the District Court. (App.15-16.) On April 21, 2009, 2009 WL 1108807, the District Court entered judgment in favor of the Commissioner. (App.14.) Wright timely appealed, arguing that the ALJ erred in (1) giving limited weight to the opinion of his treating psychiatrist, Dr. Doyle; and (2) finding Wright not entirely credible.
II.
Wright is disabled for purposes of the Social Security Act, if he can demonstrate “that there exists a medically determinable basis for an impairment that prevents him from engaging in any ‘substantial gainful activity’ for a statutory twelve-month period.” Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir.1987) (citing 42 U.S.C. § 423(d)(1)). To determine whether a claimant is disabled, an ALJ must perform a five-step, sequential evaluation, reviewing: (1) the claimant’s current work activity; (2) the medical severity and duration of the claimant’s impairments; (3) whether the claimant’s impairments meet or equal the requirements of an impairment listed in the regulations; (4) whether the claimant has the residual functional capacity (“RFC”) to return to past relevant work; and (5) if the claimant cannot return to past relevant work, whether she can “make an adjustment to other work” in the national economy. 20 C.F.R. 404.1520(a)(4)(i)-(v). The claimant bears the burden of proof at steps one through four. Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 92 (3d Cir.2007). The Commissioner bears the burden of proving at step five that a significant number of jobs exist in the national economy that are appropriate for the claimant. Id.
*108The ALJ followed this five-step process. The ALJ found that Wright’s PTSD was a “severe” impairment, but that it did not meet the requirements of the impairments listed in the regulations. (Tr. 13.) The ALJ also found that although Wright could not perform his past relevant work as a longshoreman, he had the RFC to perform work at all exertional levels and to perform simple, repetitive, routine tasks with low social contact. (Tr.14, 17-18). Based on this RFC, the ALJ found that Wright was not disabled because he could perform jobs, such as commercial cleaner, that were available in the local and national economies. (Tr. 17-18.)
Wright contends that the ALJ erred by giving limited weight to the opinion of his treating psychiatrist, Dr. Doyle, who opined in an August 2007 “Medical Source Statement of Ability to Do Work-Related Activities (Mental)” that Wright was “extremely limited” in seven work-related activities.2 (Tr. 391-92.)
A treating physician’s opinion is accorded controlling weight only if the opinion is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(d)(2); see also Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir.2001); Jones v. Sullivan, 954 F.2d 125, 128-29 (3d Cir.1991) (“[I]n the absence of contradictory medical evidence, an ALJ in a social security disability case must accept the medical judgment of a treating physician.”). Here, the ALJ noted several inconsistencies in the record.
First, the ALJ noted that Dr. Doyle’s report was inconsistent with the notes from three consultative examinations by, Wolfram Rieger, M.D. (Tr. 16.) Dr. Rieger opined that, while he agreed with Dr. Doyle’s PTSD diagnosis, he disagreed with Dr. Doyle’s assessment that Wright was totally disabled. (Tr. 221.) After a December 2005 examination, Dr. Rieger opined that Wright’s PTSD “ha[d] improved appreciably” and that he “[could] work in any other job for which he is physically, by training, education and experience qualified.” (Tr. 17; 211.) In May 2006, Dr. Rieger concluded that Wright had “fully and completely recovered from his [PTSD]” and that “[djespite alleged residual post-traumatic stress disorder symptoms he [could] return to his former job on a full time, full duty basis.” (Tr. 200-01.)
Second, the ALJ noted that Dr. Doyle’s report was inconsistent with Dr. Saul’s testimony at the hearing. (Tr. 17.) Based on reviewing Wright’s file and observing Wright as he testified, Dr. Saul testified that Wright was capable of performing simple, routine, repetitive work, with low social contact. (Tr. 47-48.)
Third, the ALJ found that Dr. Doyle’s August 2007 report was inconsistent with his own treatment notes. (Tr. 17.) For example, treatment notes from two January 2006 visits indicated that Dr. Doyle discussed a plan for a graduated return to work. (Tr. 232.) Also, a July 2006 assessment indicated that Wright had only slight to marked limitations. (Tr. 274-75.) However, the August 2007 report indicated that Wright had extreme limitations in several work-related activities, and Dr. Doyle made no explanation for the change. (Tr. 16-17, 391-92.)
*109Wright contends that the ALJ erred because he stated that the last day of treatment by Dr. Doyle prior to his August 2007 report was in February, when it was actually in May; and because the ALJ faulted Dr. Doyle’s reports for making references to other stressors, such as Wright’s preoccupation with his worker’s compensation litigation, financial issues, and daughter’s illness. To the extent these amount to errors, they are minor and harmless. We conclude that, even without these reasons for giving less weight to Dr. Doyle’s August 2007 report, the ALJ gave an adequate explanation supported by substantial evidence in the record.
Wright next contends that the ALJ erred in finding that Wright’s “statements concerning the intensity, persistence and limiting effects of [his] symptoms [were] not entirely credible.” (Tr. 15.)
Wright is correct that an ALJ must give weight to a claimant’s testimony “when this testimony is supported by competent evidence.” See Schaudeck v. Comm’r of Soc. Sec. Admin., 181 F.3d 429, 433 (3d Cir.1999); Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir.1999) (“Allegations of pain and other subjective symptoms must be supported by objective medical evidence.” (citing 20 C.F.R. § 404.1529)). However, as discussed above, the record lacks objective medical evidence supporting Wright’s subjective complaints. Specifically, the record contains Dr. Rieger’s opinion that Wright was “trying to drag on his workmen’s compensation case in order to maintain a posture of at least partial disability in order to obtain maximum secondary gains in third party litigation.” (Tr. 201.) The record also contains Dr. Rieger’s opinion that Wright exaggerated when he completed the Minnesota Multiphasic Personality Inventory (“MMPI”) test and that his “credibility ha[d] not been enhanced by his test behavior.” (Tr. 203.) The MMPI revealed that Wright suffered from “schizophrenia, possibly paranoid type or delusional disorder,” diagnoses that Dr. Rieger indicated were not clinically supportable. (Tr. 203.) Thus, we conclude that substantial evidence in the record supports the ALJ’s credibility assessment.
III.
For the above-stated reasons, we will affirm the judgment of the District Court.
. The District Court had jurisdiction pursuant to 42 U.S.C. § 405(g). We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
. The work-related activities were: understand and remember detailed instructions; carry out detailed instructions; the ability to make judgments on simple work-related decisions; interact appropriately with supervisor(s); interact appropriately with co-workers; respond appropriately to work pressures in a usual work setting; and respond appropriately to changes in a routine work setting. (Tr. 391-92.) | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480228/ | OPINION OF THE COURT
HARDIMAN, Circuit Judge.
Li Qin Lin petitions for review of an order of the Board of Immigration Appeals (BIA) denying her application for asylum and withholding of removal. We will deny the petition.
I.
Because we write for the parties, we recount only the essential facts and procedural history.
A citizen of China, Lin left her parents’ home to live in her employer’s dormitory. While living there, a Mend introduced her to Falun Gong, which Lin practiced in the dormitory several times a week. One night police searched Lin’s room and, after finding Falun Gong books and media, they arrested and interrogated Lin and her friend.
Officers beat Lin for ten minutes and detained her in a cell by herself. She was fed one bowl of a rice a day for eight days. On the eighth day, Lin was released when her parents paid the police and promised *128she would cooperate with them. Lin had some bruises from the beating that she treated at home but did not seek medical attention.
After the arrest, Lin lost her job and moved back in with her parents, where she continued practicing Falun Gong late at night to avoid detection. Police twice summoned Lin to the police station where they questioned her about Falun Gong for about thirty minutes each time. Both times she was released without being harmed or threatened.
After receiving a third summons from police, Lin’s parents became concerned and paid a smuggler to transport her to the United States. She found a job in South River, New Jersey and claims she continued practicing Falun Gong alone in her dorm room in South River with the door closed and occasionally with a group in Grand Street Park in New York City.
Shortly after Lin entered the country, the Department of Homeland Security initiated removal proceedings. She conceded removability, then applied for asylum and withholding of removal and sought protection under the Convention Against Torture (CAT). The Immigration Judge (IJ) denied her requests and ordered Lin’s removal to China. The BIA affirmed and Lin timely petitioned for review of the denials of her requests for asylum and withholding of removal, but not her CAT claim.
We have jurisdiction over Lin’s petition for review pursuant to 8 U.S.C. § 1252. Where the BIA issues a decision on the merits, as opposed to a summary affir-mance, we review the BIA’s decision for substantial evidence. Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). Because the BIA’s decision affirmed and reiterated the IJ’s corroboration analysis, however, we review the IJ’s corroboration determination along with the BIA’s decision. Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d Cir.2009).
Factual findings, including findings related to persecution and fear of persecution, are conclusive as long as they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (citing 8 U.S.C. § 1105a(a)(4)). We will reverse the factual findings only if the evidence “was so compelling that no reasonable factfinder could fail to find” for the petitioner. Id. at 483-84, 112 S.Ct. 812. We also give deference to the IJ’s corroboration determination: “No court shall reverse a determination made by a trier of fact with respect to the availability of corroborating evidence ... unless the court finds ... that a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable.” 8 U.S.C. § 1252(b)(4)(D).
II.
Lin claims she qualifies for asylum because she suffered past persecution and has a well-founded fear of future persecution on account of her practice of Falun Gong. The BIA denied asylum because it found that her past abuse did not rise to the level of persecution and she did not show a well-founded fear of future persecution.
A.
As for her claim of past persecution, we agree with the BIA that Lin was abused when she was detained and fed inadequately for eight days. She was also beaten for ten minutes, which caused bruising but did not require medical treatment. After her release, Chinese authorities questioned Lin twice but did not rearrest or threaten her. Although this abuse *129is deplorable, the BIA did not err when it held that it did not rise to the level of persecution. Jarbough v. Att’y Gen., 483 F.3d 184, 191-92 (3d Cir.2007).
B.
The BIA also found that Lin did not establish an objectively reasonable or well-founded fear of future persecution if she is returned to China. We find this conclusion supported by substantial evidence as well. Lin’s friend, who was arrested with her, still practices Falun Gong in China but has not been rearrested or threatened. The BIA did not err in holding that there is no basis for concluding that Lin would be treated differently. Indeed, when Lin was called back to the police station, she received essentially the same treatment as her friend.
Lin argues that she established a reasonable fear of future persecution because she testified that Chinese officials continue to pursue her by monitoring and harassing her parents. The BIA found that Lin did not present sufficient evidence that Chinese police are still interested in her. Lin claims her testimony must be credited because the IJ did not make an adverse credibility determination. Even when credited, however, Lin’s testimony does not satisfy her burden of proof.
First, Lin testified only to her personal belief that her parents were being harassed and monitored. This belief was based on conversations in which she claims her parents implied that they were being harassed and monitored. As the BIA explained, Lin “speculated” about the harassment because she conceded that her parents never told her about it directly. Furthermore, her mother submitted an affidavit in this case that does not refer to any harassment. While Lin inferred that her parents were being harassed, the BIA was not required to draw the same inference. To the contrary, the BIA was entitled to infer that Lin’s parents never mentioned harassment because there was none.
Second, under the REAL ID Act, the IJ was allowed to require corroborating evidence, even for credible testimony. 8 U.S.C. § 1158(b)(l)(B)(ii). Lin has not provided any evidence to corroborate her credible testimony that she believes her parents are still being harassed. Indeed, the only evidence from her parents is her mother’s affidavit, which does not mention any harassment. The statute excuses corroborating evidence when “the applicant does not have the evidence and cannot reasonably obtain the evidence.” 8 U.S.C. § 1158(b)(l)(B)(ii). But Lin did not show that she could not reasonably obtain such evidence.
Similarly, the IJ found and the BIA affirmed that Lin did not present corroborating evidence that she continues to practice Falun Gong, which is the basis for Lin’s alleged fear of future persecution.1 Lin claims she should be excused from providing such evidence because she could not obtain the corroborating testimony. Her explanations were inconsistent, however, as she claimed: (1) she never asked any of her fellow practitioners; (2) she did not know whom to ask; (3) she asked some of the regular practitioners but they refused to testify because they are also undocumented aliens; and (4) she did not ask the regular practitioners because she assumed they were undocumented aliens. *130Those inconsistent responses are plainly insufficient to justify Lin’s failure to present corroborating evidence. Therefore, the BIA did not err in concluding that she did not have an objectively reasonable fear of future persecution. Consequently, there was no error in denying Lin’s request for asylum.2
For the foregoing reasons, the BIA’s decision was supported by substantial evidence and we will deny Lin’s petition for review.
. Lin also argues that she had an objectively reasonable fear of future persecution because the 2005 Country Report on China states that even former Falun Gong practitioners are persecuted. Because Lin failed to raise this argument in the BIA, it is waived. Joseph v. Att’y Gen., 465 F.3d 123, 126 (3d Cir.2006).
. Because there is a higher burden for withholding of removal than for asylum, Lin’s claim for withholding necessarily fails. See Zubeda v. Ashcroft, 333 F.3d 463, 469-70 (3d Cir.2003). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480230/ | *134OPINION 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. The District Court granted summary judgment in favor of the Appel-lees on all claims. We will affirm.
James DeWees, former Deputy Warden at the Dauphin County Prison, first alleges that the termination of his employment was a retaliatory act in violation of the First Amendment of the United States Constitution. DeWees alleges that Dauphin County and, in their individual capacities, Prison Warden Dominick DeRose, County Commissioner Jeffrey Haste, and Human Resources Director Mark Temple-ton eliminated his position in retaliation for three acts: DeWees’ previous lawsuit against DeRose and Dauphin County; a report DeWees made to the District Attorney about alleged over billing by a prison contractor; and a letter DeWees sent to Haste about alleged misappropriations of prisoners’ funds.1 He further claims that his termination constitutes a wrongful discharge under Pennsylvania law.
DeWees next alleges that the Defendants withheld his final paycheck, in violation of his rights to due process and equal protection under the Fourteenth Amendment of the United States Constitution. Finally, DeWees maintains that the Defendants’ roles in terminating his employment constitute civil conspiracy.
On appeal, DeWees argues that the District Court applied the wrong standard of review to his claims, thereby failing to make reasonable inferences of fact in his favor. He also asserts that the District Court made numerous errors of law and fact. We will briefly review each claim.
With regard to alleged First Amendment retaliation arising from DeWees’ reports of financial issues at the prison, he acknowledges in briefing that such a claim is premised upon a legal determination that the events allegedly giving rise to retaliation were protected speech. We do not find any error in the District Court’s legal conclusion that DeWees’ reports of alleged improprieties at the prison were not protected speech because they fell within his employment obligations. Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). Accordingly, DeWees’ First Amendment retaliation claim stemming from these reports clearly failed as a matter of law.
The District Court did find that DeWees provided sufficient, albeit paltry, evidence to make out a prima facie case that the elimination of his position was in retaliation for his earlier lawsuit against DeRose and Dauphin County.2 Yet, the District Court ruled that the record did not support any reasonable inference that either Templeton or DeRose had any personal involvement in the Dauphin County Salary Board’s decision to cut DeWees’ position: a requisite for asserting a civil rights claim. With regard to Haste, the District Court held that, as a member of *135the Dauphin County Salary Board, his vote to eliminate the Deputy Warden position was a legislative act that entitles Haste to absolute immunity. On these bases, as to DeWees’ First Amendment retaliation claims arising from the lawsuit, the District Court granted summary judgment in favor of all of the Defendants. Upon our own review, we agree with the District Court.3
DeWees next asserts Fourteenth Amendment equal protection and due process claims emanating from his allegation that the Defendants unjustly withheld his last paycheck.4 The Defendants respond that the check was properly kept back pending DeWees’ compliance with instructions to return items regarded as prison property. While noting a possible factual dispute over whether certain items were actually returned, the District Court ruled that DeWees’ allegation simply does not support a claim of a Fourteenth Amendment due process violation because the conduct in question plainly does not shock the conscience, which is necessary to sustain such a claim. We agree.
Regarding DeWees’ civil conspiracy claim, the District Court found that the utter absence of any direct evidence that the Defendants had any joint plan to treat DeWees unjustly necessitated a dismissal of this claim. Again, upon our own review, we agree.
DeWees’ final claim is, essentially, that the same facts grounding his First Amendment retaliation claims also support an allegation of wrongful discharge under Pennsylvania law. The District Court found that Dauphin County had governmental immunity from the wrongful discharge suit. It also granted summary judgment on this claim in favor of Temple-ton and DeRose because of the complete absence of record evidence linking them to the Salary Board’s vote to eliminate DeW-ees’ position. Finally, as to defendant Haste, the District Court dismissed the wrongful discharge claim against him because, according to Pennsylvania decisional law, a single commissioner cannot be held liable for the actions of an entire board. We do not find any error in these holdings.
For all of these reasons, we will affirm the order of the District Court granting summary judgment in favor of the Defendants.
. The District Court noted that DeWees' complaint appeared to raise both individual and official capacity claims against DeRose, Haste, and Templeton. It dismissed the official capacity claims as duplicative of the claim against Dauphin County. DeWees does not challenge the District Court's finding.
. In addition, the District Court concluded that it “cannot say that Defendants have satisfied their substantial burden of proving a non-retaliatory basis was the but-for cause of Plaintiff's loss of his job and that no reasonable juror could conclude otherwise." DeWees v. Haste, 620 F.Supp.2d 625, 634 (M.D.Pa.2009).
. DeWees attempted, at the time of summary judgment, to construe his allegation that Tem-pleton withheld his paycheck as another instance of First Amendment retaliation. The District Court ruled that characterizing this allegation in this manner was inconsistent with DeWees' complaint, and it refused to consider this claim in its First Amendment analysis. While DeWees attempts to make the same argument on appeal, he does not challenge the District Court’s conclusion that, in his complaint, the paycheck allegation relates only to his assertion of Fourteenth Amendment violations. For this reason, we reviewed it only within the context of DeW-ees’ Fourteenth Amendment claim.
. DeWees alludes to an equal protection violation in his appellate brief, but he does not challenge the District Court’s reasoning that the “class-of-one” theory he asserted is not available in this context to ground an equal protection claim. We, therefore, regard an appeal of DeWees’ equal protection claim as waived. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480231/ | OPINION
AMBRO, Circuit Judge.
Bear Stearns International Ltd., et al., (Bear Stears) appeals the District Court’s *211affirmance of the Bankruptcy Court’s order granting summary judgment for American Home Mortgage Investment Corp., eb al., (“American Home”) in an interpleader action. We affirm as well.
I.
The interpleader action in this appeal concerns a payment dispute between Bear Stearns and American Home as to which party has the right to a single $1.8 million monthly distribution from a Delaware statutory trust. American Home held a Trust Certificate, which represented a fractional, undivided interest in that trust. The Trust Certificate provided that (i) monthly distributions be paid to the registered cer-tifieateholder as of the record date, and (ii) that the certificate could be transferred only to an entity that qualified as a real estate investment trust (REIT) or qualified REIT subsidiary, as those terms are defined in the Internal Revenue Code, 26 U.S.C. §§ 856(a) and (i). App. 387, 335.
American Home sold the Trust Certificate to Bear Stearns in May 2007 as part of a repurchase agreement (the “Repo Agreement”), whereby American Home transferred to Bear Stearns all “right, title[,] and interest” in the certificate for $19,534,000, and agreed to repurchase the Trust Certificate for $19,636,879.07. App. 332.2
Normally in such transactions Bear Stearns would re-register the purchased securities in its own name. Consequently, any income from those purchased securities during the term of the Repo Agreement would be made to Bear Stearns, who would then, pursuant to Section 5(i) of the Repo Agreement, transfer that income to the securities seller (here, American Home.) In this transaction, however, because Bear Stearns was not a REIT, it did not re-register the Trust Certificate in its name. Instead, American Home transferred the Trust Certificate “in blank,” meaning that the transferee’s identity was left blank in the transfer documents. The significance of making the transfer “in blank” was that Bear Stearns obtained a fully negotiable Trust Certificate but that American Home remained the registered certificateholder.
As the registered certificateholder, American Home received the monthly payments directly from the Certificate Registrar of the trust, Wells Fargo, during May, June, and July 2009. On August 3, Bear Stearns terminated the Repo Agreement following American Home’s failure to meet a margin call.3 Three days later, American Home and several of its affiliates filed for bankruptcy protection in the District of Delaware. Bear Stearns then exercised its right to liquidate the Trust Certificate *212and sold it to a Bear-Stearns-created REIT, the Strategic Mortgage Opportunities REIT, Inc. (“Strategic Mortgage”).
Though Bear Stearns was entitled to register the Trust Certificate in Strategic Mortgage’s name when it did, it failed to do so by the August record date. In September, before the August payment had been made, Bear Stearns became aware of its error and communicated with both Wells Fargo and American Home, indicating that it was entitled to the August payment.
Wells Fargo, in the position of having to make a payment to either Bear Stearns or American Home, filed this interpleader action in the Bankruptcy Court. Both Bear Stearns and American Home filed motions for summary judgment. Bear Stearns argued that the “all right, title[,] and interest” language in the Repo Agreement included American Home’s right to the monthly distributions. In the alternative, it argued that, even if American Home were technically entitled to the payment, Bear Stearns was equitably entitled to the payment because the failure to re-register the Trust Certificate was just a “clerical error.” In contrast, American Home argued that it was entitled to the payment because the language in the Trust Agreement and the Trust Certificate (collectively, the “Trust Documents”) indicated that the payment should be made only to the registered certificateholder as of the record date.
After hearing oral argument, the Bankruptcy Court granted summary judgment for American Home. It held that, “[ajbsent the expressed intent of the parties in the Repo Agreement that the clear and unambiguous terms of the Trust Documents are supplemented by the Repo Agreement, the terms of the Trust Document must control.” App. 31.
In addition, the Bankruptcy Court denied Bear Stearns’ request for equitable relief because (i) the act of registering a certificate is not a “clerical error” but rather “a legally significant act,” App. 29; (ii) granting equitable relief would “create confusion, introduce uncertainty and ultimately reduce liquidity in the secondary securities markets,” App. 29-30; and (iii) the Trust Certificate “cannot be rewritten on equitable grounds,” App. 30.
The District Court affirmed the summary judgment order for American Home. It concluded that the Bankruptcy Court properly interpreted the Trust Documents and the Repo Agreement. In addition, it held that the Bankruptcy Court did not abuse its discretion when denying equitable relief because Bear Stearns had not taken steps to protect itself. App. 12.
Bear Stearns urges us to reverse the District Court’s order because the Repo Agreement directs that the payment be made to Bear Stearns; alternatively, if American Home is entitled to the payment under the Trust Documents, Bear Stearns argues that it should nonetheless be entitled to the payment under principles of equity. To hold otherwise, it contends, would unjustly enrich American Home.
II.
We find Bear Stearns’ arguments unavailing. Applying English law to interpret the language in the Repo Agreement (following the parties’ choice-of-law provision), we reach the same conclusion as the Bankruptcy Court: the Repo Agreement was silent as to the distributions to be made under the Trust Certificate. “Under English law, the words of a contract are interpreted in accordance with their plain and ordinary meaning.” Crown Cork & Seal Tech. Corp. v. Continental Pet Tech. Inc., 232 F.Supp.2d 294, 298 (D.Del.2002) (citing Investors Compensation Scheme *213Ltd. v. West Bromwich Bldg. Soc’y, [1998] 1 W.L.R. 896, 913). “[T]he test for ascertaining the meaning of terms in a contract is to determine how the language of the contract would have been understood by a reasonable person having all of the background knowledge and information that would reasonably have been available to the parties in the situation in which they were at the time of the contract.” Id. at 299. This relevant background knowledge is termed the “matrix of fact” and “includes anything which would have affected the way in which the language of the document would have been understood by a reasonable man.” Id.
Section 6(f) of the Repo Agreement states that American Home transferred all “right, title[J and interest” in the Trust Certificate. App. 299. This entitled Bear Stearns to transfer the Trust Certificate and to become the registered certificate-holder. Nothing in this language or elsewhere in the Repo Agreement, however, addresses the right to income from the Trust Certificate. The only language in the Repo Agreement concerning income from securities is contained in Section 5(i), which states that, if Bear Stearns receives any income from the Trust Certificate during the term of the Repo Agreement, it will transfer that income to American Home.App. 297 at § 5(i). This provision, however, does not indicate to which party the Certificate Registrar was to make the monthly distributions.
Without any language in the Repo Agreement indicating to whom Wells Fargo was to make the monthly distributions, the Trust Documents control the distribution of the monthly payments. In interpreting the provisions of the Trust Documents, we apply Delaware law, which instructs that a party is bound by the plain meaning of clear and unequivocal contract terms. Rhone-Poulenc Basic Chems. Co. v. American Motorists Ins. Co., 616 A.2d 1192, 1195-96 (Del. 1992). The Trust Documents state that payments will be made to the registered certificateholder as of the record date:
There will be distributed ... to the Person in whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding such Payment Date (the “Record Date”)[] such Certificateholder’s Percentage Interest in the amount to be distributed to Certificateholders on such Payment Date.
App. 337. This language clearly and unequivocally entitles the registered certifi-cateholder as of the August record date to the August payment, and the parties agree that the Trust Certificate was registered to American Home.4
Finally, we agree with the District Court that the Bankruptcy Court did not abuse its discretion in denying Bear Stearns equitable relief. The Bankruptcy Court’s denial was premised on the reasonable conclusion that Bear Stearns’ failure to re-register the Trust Certificate was more than a clerical error.
III.
Accordingly, we affirm the District Court’s order affirming the Bankruptcy *214Court’s order granting summary judgment for American Home.
. While this arrangement is functionally similar to a loan secured by the Trust Certificate, it is nonetheless treated as a repurchase agreement (or "repo”), as the Bankruptcy Court discussed in another adversary proceeding in this bankruptcy case, Calyon New York Branch v. American Home Mortgage Corp., et al. (In re American Home Mortgage, Inc.), 379 B.R. 503, 515-17(Bankr.D.Del.2008).
. The parties have stipulated that, for purposes of this proceeding, Bear Stearns was entitled to make this margin call. App. 189.
. Bear Steams' contends the Trust Documents were ambiguous because Section 3.07 of the Trust Agreement states that the Certificate Registrar "may treat the Person in whose name this Certificate is registered as the owner thereof for all purposes,” App. 342 (emphasis supplied). As the Bankruptcy Court found, however, this language is not inconsistent with other provisions of the Trust Documents that clearly require distributions to be made to the registered certificateholder. App. 28. Hence there is no ambiguity.
.The Bankruptcy Court had jurisdiction over the interpleader action under 28 U.S.C. §§ 157(b) and 1334; the District Court had jurisdiction to review the Bankruptcy Court’s final order under 28 U.S.C. § 158(a)(1); and we have jurisdiction under 28 U.S.C. §§ 158(d) and 1291. "Since the District Court sat as an appellate court to review the Bankruptcy Court, 'we review its legal determinations de novo, its factual findings for clear error, and its exercises of discretion for abuse thereof.’ ” In re Tower Air, Inc., 397 F.3d 191, 195 (3d Cir.2005) (citing In re Engel, 124 F.3d 567, 571 (3d Cir.1997)). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480232/ | *230OPINION
ROTH, Circuit Judge:
I. Introduction
Angel Colon appeals a May 14, 2009, judgment of the United States District Court for the Eastern District of Pennsylvania sentencing him to 120 months imprisonment, to be followed by 96 months of supervised release, after he pled guilty to attempted possession with intent to deliver cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Colon alleges that the District Court erred by denying his motion to suppress evidence of the cocaine found inside a United States Express Mail package seized by postal inspectors. We will affirm the judgment of the District Court.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We review a district court’s findings on a motion to suppress for clear error, and exercise plenary review over its application of the law to the facts. United States v. Mathurin, 561 F.3d 170, 173 (3d Cir.2009). We assume the parties’ familiarity with the factual and procedural history, which we describe only as necessary to explain our decision.
II. Background
On the morning of October 30, 2007, United States Postal Inspector Jose R. Cottes, Jr. was reviewing incoming mail at the Philadelphia International Airport when his suspicion was aroused by an Express Mail package. The package, which was wrapped in brown paper and heavily taped, had been mailed by Juan Olivencia Ortiz in Puerto Rico to David Olivencia Ortiz in Reading, Pennsylvania. The package was mailed from a post office in Puerto Rico different from the one servicing the return address. After consulting the Accurint database,1 Inspector Cottes learned that the return address was a legitimate residence in Puerto Rico but that no one by the name of Juan Olivencia Ortiz lived there. Inspector Cottes then contacted the post office that services the return address, which confirmed that no “Juan Olivencia Ortiz” lived at that address.
Based on these facts, Inspector Cottes detained the package for further inspection. After a drug-detection dog alerted to the presence of narcotics, the inspectors secured a search warrant and discovered 1.6 kilograms of cocaine inside the package. A controlled delivery was arranged, during which Colon identified himself as David Ortiz and signed for the package. He was then arrested.
Colon moved to suppress evidence of the cocaine, claiming that the postal inspector lacked reasonable suspicion to seize the Express Mail package. After a hearing, the District Court denied the motion. On February 27, 2008, Colon entered a guilty plea but reserved his right to appeal the District Court’s denial of his suppression motion. This appeal followed.
III.Discussion2
Consistent with the Fourth Amendment, a postal inspector may detain a mail parcel for inspection only if he has a reasonable suspicion that it contains contraband. United States v. Van Leeuwen, 397 U.S. 249, 251-52, 90 S.Ct. 1029, 25 L.Ed.2d 282 *231(1970). In determining whether reasonable suspicion existed, the district court must examine the totality of the circumstances confronting the officer at the time and eschew analyzing any one factor in isolation. United States v. Arvizu, 534 U.S. 266, 273-74, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). Although law enforcement officers may not act on a “mere hunch” to establish reasonable suspicion, they may “draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ ” Id. (citations omitted).
Inspector Cottes stated the following reasons for detaining the package: (1) the use of Express Mail, a preferred method of drug traffickers which enables them to track the package; (2) the package was sent from Puerto Rico, a known drug source location; (3) the package was mailed from a post office outside of the zipcode on the return address; (4) an Acc-urint check revealed that no one by the sender’s name lived at the return address; and (5) the package was heavily taped at all seams, which drug traffickers tend to believe prevents detection of the drugs. Although most of these circumstances, viewed independently, comport with innocent behavior, Inspector Cottes explained how the combination of these factors provided a reasonable basis for suspecting that the package contained contraband. See id. at 274, 122 S.Ct. 744 (rejecting a “divide-and-conquer analysis” whereby the lower court evaluated the factors of reasonable suspicion “in isolation from each other”); United States v. Whitted, 541 F.3d 480, 489 (3d Cir.2008) (whether reasonable suspicion existed at the time of the search is based on the “totality of the circumstances” even if “each individual factor alone may be consistent with innocent behavior”).
Moreover, Inspector Cottes was entitled to rely on his seventeen years of experience in intercepting suspicious mail parcels — five of which were spent in Puerto Rico — in determining whether reasonable suspicion justified detaining the package. See United States v. Robertson, 305 F.3d 164, 168 (3d Cir.2002) (an officer’s “experience and training [are] indispensable to his evaluation of reasonable suspicion”); United States v. Dennis, 115 F.3d 524, 533 (7th Cir.1997). When taken together, these factors gave Inspector Cottes a reasonable suspicion, grounded in specific observations and information, to believe that the package contained drugs. See, e.g., United States v. Alexander, 540 F.3d 494, 501 (6th Cir.2008) (holding that reasonable suspicion existed where “the signature was waived with an ‘X’ mark, the package seemed ‘dense,’ the label was handwritten, the package was coming from [a drug source location], and the return address was fictitious”); United States v. Terriques, 319 F.3d 1051, 1056-57 (8th Cir. 2003); United States v. Hernandez, 313 F.3d 1206, 1211 (9th Cir.2002). Accordingly, the District Court properly denied Colon’s motion to suppress the evidence.
IV. Conclusion
For the foregoing reasons, we will affirm the judgment of conviction.
. Accurint is an online database that contains up-to-date information about postal addresses.
. Although the parties dispute Colon’s standing to challenge the Fourth Amendment seizure, we have confined our discussion to reasonable suspicion. Even assuming that Colon has standing, the District Court properly denied Colon’s motion to suppress because the postal inspector had reasonable suspicion to detain the package. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480233/ | OPINION
ROTH, Circuit Judge:
Appellants Thomas Fox and Robert Wasserman, as trustee for Target Industries, Inc., and Lance Plastics, Inc., and Cross-Appellants Martin Goz, Sr., et al, appeal the District Court’s affirmance of the Bankruptcy Court’s order dismissing their claims and counterclaims. For the reasons discussed below, we will affirm.1
*2361. Introduction
Thomas Fox bought the assets of the consolidated bankruptcy estate of Target and Lance, New Jersey corporations in the business of distributing and manufacturing plastic bags. Fox, along with the Trustee of the bankruptcy estate, then commenced an adversary proceeding in the Bankruptcy Court against former Target personnel who had left to work for a competitor, TriCor Corporation. Tri-Cor was owned by a former Target Officer, Guy Zimmer-mann. Fox sought damages from these former employees and Zimmermann (collectively, the Tri-Cor defendants), alleging various business torts, including the misappropriation of Target’s customer lists, tor-tious interference with contractual relations, and breach of duty of loyalty.2 The defendants counterclaimed, alleging that Fox had attempted to scare former Target clients from doing business with Tri-Cor.3
After both parties moved for summary judgment, the Bankruptcy Judge dismissed three counts in the complaint, but otherwise denied the motions.4 Following an unsuccessful interlocutory appeal of this order, the case was remanded to the Bankruptcy Court, this time before another judge. This judge conducted a 14-day trial, at the end of which he dismissed every claim in the proceedings. The District Court affirmed the Bankruptcy Court order, adopting its reasoning and analysis.
On appeal to this Court, Fox contends that the Bankruptcy Court erroneously determined that (1) Target’s customer lists were neither proprietary information nor property of the estate, (2) the Tri-Cor defendants did not breach any duty of loyalty to Target, (3) Zimmermann did not breach any fiduciary duties to Target and was not liable for fraudulent conveyances under 11 U.S.C. §§ 544(b)and 548, and (4) the Tri-Cor defendants did not tortiously interfere with Target’s contractual relations. The Tri-Cor defendants, in turn, allege that the Bankruptcy Court erred in finding that there was insufficient evidence to support their counterclaims.
II. Discussion
A. Proprietary Information
As the Bankruptcy Court found, customer lists may be proprietary information under New Jersey law, depending on *237the nature of the business and the restrictions placed on employees. Lamorte Burns & Co. v. Walters, 167 N.J. 285, 770 A.2d 1158, 1166 (2001). Customer lists of service businesses receive special protection because the names and addresses of customers are not publicly available or ascertainable. AYR Composition, Inc. v. Rosenberg, 261 N.J.Super. 495, 619 A.2d 592, 597 (N.J.Super.Ct.App.Div.1993). Customer lists of non-service businesses may also be proprietary information if the lists contain information that is not publicly available and the company protects such information with restrictive covenants, such as confidentiality agreements or covenants not to compete. Platinum Mgmt., Inc. v. Dahms, 285 N.J.Super. 274, 666 A.2d 1028, 1038 (N.J.Super. Ct. Law Div. 1995).
Here, Target was not in a service business; rather, it sold plastic bags. Information about the sale of plastic bags is publicly available, and Target did not seek to protect information concerning its customers through restrictive covenants in its employment contracts. Accordingly, we hold that Target’s customer lists were not proprietary information and, consequently, not assets of the bankruptcy estate.
B.Duty of Loyalty
Even though none of the employees had signed restrictive covenants or confidentiality agreements, they nonetheless owed a common law duty of loyalty to Target while employed there. See Lamorte, 770 A.2d at 1168. This duty required the Tri-Cor defendants, while employed at Target, to refrain from competing with Target or otherwise acting contrary to Target’s interest. See id.
The Bankruptcy Court found that the Trustee had already closed Target and terminated its employees by the time TriCor was formed and the Tri-Cor defendants began to solicit Target’s customers. While the Bankruptcy Court considered evidence that the Tri-Cor defendants had prepared for this transition prior to their termination, it concluded this evidence did not indicate that they were in any way disloyal to Target while employed there.
Similarly, even though Zimmer-mann was an officer of Target when it filed for bankruptcy, the Bankruptcy Court found that he had been displaced from his responsibilities when the Trustee was appointed. Therefore, at the time of his alleged misconduct, he was not an officer or an “insider” for purposes of fraudulent conveyance liability, under 11 U.S.C. § 548.
Fox has offered no compelling evidence to convince us that the Bankruptcy Court’s findings of fact were clearly erroneous. We, therefore, hold that the Tri-Cor defendants are not liable for breach of duty of loyalty and that Zimmermann is not liable for breach of fiduciary duties or for fraudulent conveyance.
C.Tortious Interference
Because the Tri-Cor defendants neither misappropriated Target’s assets nor breached any duties owed to Target, we agree with the Bankruptcy Court that it was not improper for the Tri-Cor defendants to contact Target’s customers. Accordingly, we find that the Tri-Cor defendants did not tortiously interfere with Target’s contractual relations. See Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 563 A.2d 31, 36 (1989) (holding that tortious interference with contractual relations requires a “luring away, by devious, improper and unrighteous means, of the customer of another”) (internal quotation marks omitted).
*238D. Unfair Business Practices
Finally, the Bankruptcy Court found that the Tri-Cor defendants failed to present sufficient evidence to support their counterclaims for unfair business practices. The Tri-Cor defendants contend that two letters from Fox to Tri-Cor customers support their counterclaims. These letters alerted Tri-Cor’s customers to this pending action and to the possibility that Tri-Cor could be enjoined from doing business with them. We agree with the Bankruptcy Court that nothing in these letters is actionable.
III. Conclusion
For the reasons discussed above, we will affirm the judgment of the District Court, dismissing the claims and counterclaims.
. The Bankruptcy Court had jurisdiction over the adversary proceeding under 28 U.S.C. §§ 157 and 1334, and the District Court had jurisdiction to review the Bankruptcy Court’s *236final order under 28 U.S.C. § 158(a)(1). We have jurisdiction under 28 U.S.C. §§ 158(d) and 1291. "We exercise plenary review of the District Court's conclusions of law. Since the District Court sat as an appellate court to review the Bankruptcy Court, we review the Bankruptcy Court's legal determinations de novo, its factual findings for clear error, and its exercises of discretion for abuse thereof." In re Tower Air, Inc., 397 F.3d 191, 195 (3d Cir.2005) (internal citations and quotation marks omitted).
. Fox pursued sixteen causes of action against all the Tri-Cor defendants and two against Zimmermann individually. The sixteen causes of action were as follows: misappropriation of assets and proprietary information, breach of contract, conspiracy, breach of loyalty and confidentiality, breach of covenant of good faith and fair dealing, unfair competition, tortious interference with contractual relations, conversion, fraud, civil RICO, piercing the corporate veil, and several bankruptcy causes of action. The two causes of action pursued against Zimmermann were for breach of fiduciary duties and for fraudulent transfer.
. The Tri-Cor defendants’ counterclaims were for unfair competition, antitrust violations, Lanham Act violations, tortious interference with contractual relations, conversion, and defamation.
. Specifically, the judge dismissed the civil RICO count and the counts alleging breach of contract and breach of the covenant of good faith and fair dealing, except as to those defendants having employment contracts or commission agreements. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480234/ | OPINION
PER CURIAM.
Jamalud-din Almahdi commenced this action by filing a pro se complaint seeking relief under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), for alleged violations of his procedural due process rights while incarcerated. According to the complaint, Almahdi was scheduled to be released on parole from federal custody at the Community Education Center in New Jersey on March 29, 2007. On March 22, 2007, defendant Bourque wrote an incident report citing Almahdi for a “Code 297” violation of improper telephone use. On March 26, 2007, defendant Ugaz advised Almahdi “of his rights.” Defendant Funderbuck then found that Almahdi committed the charged infraction, and he recommended remand to a secure facility and that Al-mahdi’s parole release date be reviewed by the Parole Commission. The matter was referred to a Disciplinary Hearing Officer (“DHO”) for a hearing.
On March 26, 2007, Almahdi was transferred to the Metropolitan Detention Center in New York for the hearing before a DHO. The next day, and allegedly without an opportunity to be heard or to present evidence, defendant Garcia, the DHO, sanctioned Almahdi with the loss of telephone privileges for 180 days, and recommended a 30-day retardation of Almahdi’s parole date. The Parole Commission thereafter retarded the parole release date for 60 days, from March 29, 2007, to May 28, 2007.
Almahdi alleges that Bourque, Ugaz, and Funderbuck, all staff members at the Community Education Center, knew or should have known that the incident report “charged the wrong code violation.” He further alleges that DHO Garcia found the charged violation without affording due process, and that the Parole Commission knew or should have known that the disciplinary hearing was conducted improperly. Almahdi asked that his record be expunged, and he sought compensatory and punitive damages.
The District Court granted leave to proceed in forma pauperis and dismissed the complaint sua sponte for failure to state a claim upon which relief can be granted. It noted that Almahdi’s principal argument is that he was charged with the wrong disciplinary code violation, and he seeks to have his record expunged. The District Court determined that Almahdi’s claim for relief must be dismissed because a due process challenge to the disciplinary pro*262ceeding is barred under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997), given that a favorable outcome would necessarily imply the invalidity of the disciplinary finding. The District Court noted that Almahdi’s sole federal remedy is a writ of habeas corpus, and that any claimed denial of procedural due process during the disciplinary hearing, which would warrant a new proceeding, has been rendered moot by Almahdi’s release from custody.1 After the District Court denied Almahdi’s timely filed motion for reconsideration, Almahdi timely filed this appeal.
We have appellate jurisdiction under 28 U.S.C. § 1291. Our review is plenary of a sua sponte dismissal under 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim. Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.2000). Like the District Court, “[w]e must accept as true the factual allegations in the complaint and all reasonable inferences that can be drawn therefrom.” Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.1996).
We discern no error in the District Court’s analysis. Under Heck, “a prisoner does not have a cognizable § 1983 claim, even if he or she does not seek relief from the fact or duration of confinement, for alleged unconstitutional conduct that would invalidate his or her underlying sentence or conviction unless that conviction has already been called into question.” Grier v. Klem, 591 F.3d 672, 677 (3d Cir.2010); Lora-Pena v. F.B.I., 529 F.3d 503, 505 n. 2 (3d Cir.2008) (“Although Heck involved a § 1983 action by a state prisoner, the reasoning in Heck has been applied to bar Bivens claims.” (citation omitted)); see Torres v. Fauver, 292 F.3d 141, 147 (3d Cir.2002) (observing that “[i]n Edwards [v. Balisok], the Supreme Court applied Heck’s favorable termination rule to prison disciplinary sanctions that affect the duration of a prisoner’s incarceration”). Al-mahdi’s claim that he was charged with the “wrong code violation,” ultimately resulting in a 60-day delay in his release on parole, implicates the validity of the duration of his confinement. As such, because a ruling in Almahdi’s favor on the due process challenge would necessarily imply the invalidity of the punishment imposed, his civil rights claim in the present action, as the District Court fully explained, is not cognizable under the Heck rule.
Furthermore, insofar as Almahdi challenges his loss of telephone privileges, the limitation of those privileges for 180 days is not a dramatic departure from the accepted standards for conditions of confinement, and as such Almahdi has no cognizable due process claim. See Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). In addition, as this Court advised Almahdi on a prior appeal in another of his cases, he has “no protected liberty interest in retaining his custody status,” Almahdi v. Ridge, 201 Fed.Appx. 865, 869 (3d Cir.2006), and thus his due process challenge to the decision to return him to a more secure facility prior to his release on parole lacks merit. Finally, “although Almahdi appears to contend that prison officials may not have abided by all pertinent regulations in changing his custody status and limiting his telephone usage, he has no independent liberty interest in the prison procedures themselves.” Id.
For these reasons, we will affirm the District Court’s judgment.
. Almahdi alleges that he is currently serving a term of supervised release. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480235/ | OPINION
PER CURIAM.
Julianto Lau petitions for review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the reasons that follow, we will dismiss the petition in part and deny it in part.
I.
Lau, a native and citizen of Indonesia, entered the United States on a B-l visa in December 2000. He remained in the United States beyond the period of time allowed under his visa, and was ultimately placed in removal proceedings. He conceded his removability and, in May 2004, applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). He argued that he feared returning to Indonesia because he is a Chinese Christian.
In November 2007, after a hearing on the merits, the Immigration Judge (“IJ”) denied Lau’s application. In doing so, the IJ rejected Lau’s request for asylum as untimely. As for Lau’s claim for withholding of removal, the IJ concluded that Lau’s testimony lacked credibility. In support of this conclusion, the IJ highlighted several discrepancies between Lau’s testimony and his asylum application. The IJ also noted that Lau had been assisted in his application by Megawaty Gandasaputra of Asian American Placement Services (“AAPS”), who had pleaded guilty in federal court in 2005 to conspiring to commit asylum fraud.1 The IJ further held that Lau’s withholding of removal claim failed because (1) many of the incidents to which Lau testified did not constitute persecution, (2) “much of the most serious instances cited by [Lau] occurred during a time of *273anarchy and strife [in Indonesia] and cannot be considered to be persecution,” and (3) Lau’s family continued to live “relatively unharmed” in Indonesia. (Admin. Rec. at 50.) Finally, the IJ rejected Lau’s request for CAT relief, noting that Lau “provided no testimony at all today that would indicate he would be subjected to torture if returned to Indonesia.” (Id. at 51.)
On appeal, the BIA upheld the IJ’s decision, holding that the IJ’s adverse credibility finding was not clearly erroneous and that Lau had failed to demonstrate that the threat of harm to Chinese Christians in Indonesia was “so systemic or pervasive as to amount to a pattern or practice of persecution.” (Id. at 3.) The BIA also concluded that Lau had not met his burden for CAT relief.2 Lau now seeks review of the BIA’s decision.
II.
We have jurisdiction to review a final order of removal pursuant to 8 U.S.C. § 1252(a)(1). Where, as here, the BIA “invokes specific aspects of the IJ’s analysis and fact-finding in support of [its] conclusions,” we review the decisions of both the IJ and the BIA. See Voci v. Gonzales, 409 F.3d 607, 613 (3d Cir.2005). We review the agency’s factual findings, including its credibility finding, for substantial evidence. See Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir.2005). Under this deferential standard of review, we must uphold the agency’s findings “unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001).
Although Lau’s counseled brief states that his petition challenges the denial of his requests for asylum, withholding of removal, and CAT relief, the scope of our review is actually much narrower. First, we must dismiss Lau’s asylum claim because we lack jurisdiction to consider it, for two reasons: (1) the IJ rejected it as untimely, see 8 U.S.C. § 1158(a)(3); Sukwanputra v. Gonzales, 434 F.3d 627, 633-34 (3d Cir.2006); and (2) Lau did not raise this claim in his appeal to the BIA, see 8 U.S.C. § 1252(d) (stating that “[a] court may review a final order of removal only if ... the alien has exhausted all administrative remedies available to the alien as of right”). Second, Lau waived his challenge to the BIA’s denial of his CAT claim by failing to support that claim in his brief. See Laborers’ Int’l Union of N. Am., AFL-CIO v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir.1994) (“An issue is waived unless a party raises it in its opening brief, and for those purposes a passing reference to an issue ... will not suffice to bring that issue before this court.”) (internal quotation marks and citation omitted; omission in original). Accordingly, our review is limited to the BIA’s rejection of Lau’s claim for withholding of removal. An alien seeking withholding of removal must show that it is more likely than not that his “life or freedom would be threatened in th[e] country [of removal] because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” See 8 U.S.C. § 1231(b)(3)(A); Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir.2003). To satisfy this standard, the alien must show (1) past persecution, which creates a rebuttable presumption of future persecution, or (2) a likelihood of future persecution. See 8 C.F.R. § 208.16(b). An alien need not show that he would be singled out for future persecution if he can establish that “there is a pattern or practice of persecution of a group of persons similarly situated to the applicant on account of race, religion, nationality, membership in a par*274ticular social group, or political opinion.” 8 C.F.R. § 1208.16(b)(2). To rise to the level of a “pattern or practice,” “the persecution of the group must be systemic, pervasive, or organized.” Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir.2005) (internal quotation marks and citation omitted).
Lau appears to make two arguments in support of his request for withholding of removal. First, he contends that the incidents to which he testified rise to the level of persecution. We need not consider this argument, for the IJ found that Lau’s testimony lacked credibility, an issue that Lau has now waived by failing to argue it in his brief. See Laborers’ Int’l Union of N. Am., AFL-CIO, 26 F.3d at 398.
Lau’s second argument is that there is a pattern or practice of persecution in Indonesia against Chinese Christians. We have previously rejected this argument, in part based on a review of the U.S. State Department’s Country Reports for Indonesia for 2003 and 2004, see Wong v. Att’y Gen. of the U.S., 539 F.3d 225, 233-34 (3d Cir.2008), and its Country Report for 1999, see Lie, 396 F.3d at 537-38. Although the record in the instant case includes the State Department’s 2006 Country Report and its 2007 International Religious Freedom Report, we noted in Wong that these reports “document similar or improved treatment of Chinese Christians in Indonesia.” See 539 F.3d at 234. Having reviewed these reports, as well as the remainder of the instant record, we cannot conclude that the substantial evidence compels a finding of a pattern or practice of persecution in Indonesia against Chinese Christians.
In light of the above, we will dismiss Lau’s petition in part and deny it in part.
. Lau claimed that Gandasaputra had written the introduction and conclusion for his application, but that he himself had provided the application’s substantive content.
. Lau did not appeal the IJ’s denial of his untimely asylum claim. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480237/ | OPINION
PER CURIAM.
Petitioner Melik Yavuz seeks review of the Board of Immigration Appeals’ (“BIA”) decision to affirm the Immigration Judge’s (“IJ”) final order of removal. We will dismiss the petition for lack of jurisdiction.
I.
Yavuz is a native and citizen of Turkey. He was admitted to the United States in December 2005 as a visitor, but remained *296longer than permitted. In March 2006, Yavuz was convicted in New Jersey Superior Court of harassment and sexual contact and was sentenced to a probationary term of two years. Yavuz was subsequently served with a notice to appear, charging him with removability on the bases that he overstayed his visa and had been convicted of a crime involving moral turpitude. See INA § § 237(a)(1)(B) and 237(a)(2)(A)®.
In December 2006, Yavuz sought relief from removal, applying for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Ya-vuz claimed that he experienced past persecution and fears future persecution in Turkey because of his Kurdish ethnicity and also because of his affiliation with HADEP, a Kurdish activist party. Following an administrative hearing in March 2008, the IJ denied Yavuz relief on both statutory and discretionary grounds. First, the IJ determined that Yavuz was statutorily ineligible for asylum and related relief because his testimony lacked credibility. Specifically, the IJ found that Yavuz testified in vague terms regarding the problems he suffered in Turkey due to his ethnicity, that his hearing testimony was inconsistent with his asylum application and affidavit, and that his brother, who testified on his behalf at the hearing, presented contradictory evidence regarding Yavuz’s HADEP participation. Additionally, the IJ found that Yavuz failed to provide adequate corroborating evidence of his claims. As a result of those findings, the IJ determined that Yavuz was unable to prove that he experienced past persecution, or was likely to be persecuted in the future “on account of his Kurdish ethnicity or for any other reason.” (IJ’s Opinion at 11.) Alternatively, the IJ found that even if Yavuz had been statutorily eligible for asylum, his application would be denied in the exercise of her discretion because of Yavuz’s criminal convictions.
Yavuz timely appealed the IJ’s determination and, in a January 2009 ruling, the BIA affirmed the IJ’s decision. The BIA noted that while Yavuz argued that the IJ’s adverse credibility ruling was clearly erroneous and that he had, in fact, presented adequate corroborating evidence, he did not contest the IJ’s alternative discretionary denial of his asylum application based upon his criminal convictions. In any event, the BIA affirmed the IJ’s credibility and corroboration assessments and determined that Yavuz was also statutorily ineligible for asylum, withholding of removal, and CAT relief. Yavuz filed a timely petition for review in this Court.
II.
The Government argues that we lack jurisdiction over Yavuz’s petition for review. Indeed, because Yavuz’s order of removal was based upon his conviction for a crime involving moral turpitude, we may not review the factual or discretionary findings of the BIA. See INA § 242(a)(2)(C); Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir.2006). This includes credibility determinations. Jishiashvili v. Attn’y Gen., 402 F.3d 386, 392 (3d Cir.2005) (noting that “credibility determinations are factual matters”). We may, however, review Yavuz’s claims “to the extent they present questions of law, or of the application of law to undisputed fact.” Singh v. Gonzales, 432 F.3d 533, 537-38 (3d Cir.2006). We agree with the Government that Yavuz has not raised any constitutional or legal claims in his brief, and thus, we lack jurisdiction over his petition for review.
As an initial matter, Yavuz appeals only the BIA’s decision to deny him withholding of removal and CAT relief. Therefore, even if we had jurisdiction over *297the petition, we would be precluded from reviewing the BIA’s decision to affirm the IJ’s denial of asylum. See United States v. Pelullo, 399 F.Sd 197, 222 (3d Cir.2005) (“It is well settled that an appellant’s failure to identify or argue an issue in his opening brief constitutes waiver of that issue on appeal.”).
Yavuz has never argued, either to the BIA or before this Court, that he is not removable pursuant to INA § 237(a)(2)(A)® based on his state conviction for a crime involving moral turpitude. In his brief, he primarily disputes the BIA’s decision to affirm the IJ’s adverse credibility determination, which formed the basis for the denial of his claims for asylum, withholding of removal, and CAT relief. However, because that is merely a factual issue, we lack jurisdiction to review it.
To the extent that Yavuz also argues that, despite the adverse credibility ruling, he presented adequate testimony and/or corroborating evidence to satisfy the standards for withholding of removal and CAT relief, but that the BIA did not properly consider his evidence, that is not a question of law either. Jarbough v. Att’y Gen., 483 F.3d 184, 189 (3d Cir.2007) (“[Cjourts have recognized arguments such as that an Immigration Judge or the BIA incorrectly weighed evidence, failed to consider evidence, or improperly weighed equitable factors are not questions of law.”). Accordingly, because Yavuz’s arguments do not raise a constitutional issue or a question of law, we lack the authority to review them. Id. at 190.
For those reasons, we will dismiss the petition for review for lack of jurisdiction. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480238/ | OPINION
PER CURIAM.
Petitioner Djoko Sutjipto, proceeding pro se, seeks review of a final order of removal. For the reasons that follow, we will deny his petition for review.
I.
Sutjipto, a native and citizen of Indonesia, entered the United States in May 2005 as a non-immigrant visitor. He failed to depart, and in 2007, the Department of Homeland Security (“DHS”) commenced removal proceedings. Sutjipto applied for asylum and withholding of removal predicated on his fear of persecution based on his status as a ethnically Chinese Buddhist. Sutjipto acknowledged that he had suffered no past persecution. He did testify, however, that he and his family were present in Indonesia in 1998 during anti-Chinese riots. They were able to remain unharmed by staying inside their home for two weeks. Sutjipto testified that he fears that he will be persecuted by the majority Muslim population if he is returned to Indonesia. He presented the United States Department of State’s 2007 Country Report on Human Rights Practices in Indonesia, an expert’s affidavit attesting to the risks faced by ethnic Chinese, and a similar affidavit from an official at the International Rescue Committee.
The Immigration Judge (“IJ”) found Sutjipto’s testimony to be truthful, but denied relief. First, the IJ determined that Sutjipto’s asylum application was untimely, and that he had failed to establish eligibility for an exception to the time bar. The IJ also found that Sutjipto had failed to demonstrate any past persecution, and concluded that he did not qualify for withholding of removal as he failed to establish that it was more likely than not that he *312would be persecuted if returned to Indonesia. The Board of Immigration Appeals (“BIA”) agreed with the IJ’s conclusions and affirmed. Sutjipto filed a timely petition for review.
II.
We lack jurisdiction under 8 U.S.C. § 1158(a)(3) to review the denial of Sutjipto’s asylum application as untimely. Tarrawally v. Ashcroft, 338 F.3d 180, 185—86 (3d Cir.2003). In any event, Sutjipto does not contest that finding. We retain jurisdiction to consider the denial of his application for withholding of removal. See id. “Because the [BIA] implicitly adopted the findings of the Immigration Judge while discussing the IJ’s conclusions, we review the decisions of both the [BIA] and the IJ.” Issiaka v. Att’y Gen., 569 F.3d 135, 137 (3d Cir.2009). We review factual findings for substantial evidence, see Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d Cir.2007), upholding them “unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.2003) (en banc).
III.
Sutjipto does not challenge the IJ’s and BIA’s finding that he did not establish past persecution. He argues instead that they erred in finding that he had failed to demonstrate a likelihood that he will be persecuted if removed to Indonesia. To qualify for withholding of removal, an alien must establish that it is more likely than not that his “life or freedom would be threatened in th[e] country [of removal] because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A); Tarrawally, 338 F.3d at 186. Sutjipto need not show that he had been targeted individually for persecution so long as he “establishes that in [Indonesia] there is a pattern or practice of persecution of a group of persons similarly situated.” 8 C.F.R. § 1208.16(b)(2)(i). “[T]o constitute a ‘pattern or practice,’ the persecution of the group must be ‘systemic, pervasive, or organized.’ ” Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir.2005) (citations omitted).
We agree with the IJ and BIA that Sutjipto failed to meet his burden of proof that he is eligible for withholding of removal. We have previously rejected similar claims from ethnically Chinese Christians in Indonesia, relying in part on Country Reports for Indonesia for 2003 and 2004. See Wong v. Att’y Gen., 539 F.3d 225, 233-34 (3d Cir.2008); Lie, 396 F.3d at 537-38. In those cases, we noted that violence against Chinese Christians has declined and that the Indonesian government had taken steps to promote religious and ethnic tolerance. See Wong, 539 F.3d at 234; Lie, 396 F.3d at 537. In this case, the IJ and BIA noted that the 2007 Country Report indicates that discrimination and harassment of ethnic Chinese continues to decline and that governmental reforms have increased religious and cultural freedoms. (A.R.62, 107.) We do note that Sutjipto’s experts describe instances of discrimination, harassment, and violence against ethnic Chinese Indonesians and religious minorities. However, based on our independent review of the record, we cannot conclude that substantial evidence compels a conclusion that there is a pattern or practice of persecution of ethnic Chinese persons in Indonesia.
Sutjipto takes issue with the IJ’s and BIA’s reliance on Wong and Lie, because the petitioners in those cases were Christians, not Buddhists. The 2007 Country Report speaks generally of the ethnic Chi*313nese minority in Indonesia and notes certain problems facing religious minorities (A.R.98-100, 107), as does one of Sutjipto’s own experts (A.R.128-152). The other expert specifically discusses Chinese Christians and makes no mention of Buddhists. (A.R.161-163.) Sutjipto did not present any evidence that was specific to Buddhists, focuses his argument mainly on his Chinese ethnicity, and argues only generally that he faces a risk of harm due to his status as a religious minority in a Muslim country. Accordingly, we find that consideration of Wong and Lie is appropriate.
IV.
For the foregoing reasons, we will deny the petition for review. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480240/ | OPINION OF THE COURT
CHAGARES, Circuit Judge.
Appellants Tyco International, Ltd. Group Business Travel Accident Insurance Plan (the “Plan”) and Life Insurance Company of North American (“LINA”) appeal the District Court’s final judgment in favor of appellee, Kelly Roarty (“Roarty” or “Mrs. Roarty”). We will vacate and remand.
I.
Because we write solely for the benefit of the parties, we will only briefly summarize the essential facts. Roarty’s late husband, Daniel Roarty (“Mr. Roarty”), worked as a Senior Product Manager for Scott Instruments. He was enrolled in the company’s Business Travel Accident Insurance Plan (the “BTA Plan”). Prior to 2002, the BTA Plan provided full-time coverage, “24 hours a day, whether traveling or not, at home, at work, on vacation, while traveling anywhere in the world, or while on a leave of absence” to employees who, like Mr. Roarty, earned at least $75,000 *331per year. Appendix (“App.”) 880. The benefits provided under this version of the BTA Plan were summarized in a Summary Plan Description (“SPD”) effective September 2000 (the “2000 SPD”). See App. 879-83.
In 2001, Tyco International Ltd. (“Tyco”) acquired Scott Instruments. In 2002, Tyco selected LINA to become the underwriter for a new BTA Plan. This new version of the plan became effective July 1, 2002. App. 271. It provided more limited coverage, covering only accidents occurring while an employee was traveling on business for Tyco. Id.
Tyco prepared a new SPD in 2002, (the “2002 SPD”), but this document did not reflect the changes made to the BTA Plan. The 2002 SPD did, however, include a statement that the BTA Plan was “subject to change July 1, 2002.” App. 423. Tyco also prepared a Summary of Material Modifications (“SMM”), and this document described the change in the scope of the BTA Plan’s coverage. App. 486. The SMM began by noting that the “following are changes effective July 1, 2002 with respect to Tyco’s Business Travel Accident (BTA), Accidental Death and Dismemberment (AD & D) and Personal and Family Accident (PFA) insurance plans. Please file this information with your important insurance documents.” Id. The SMM included the following notice describing the changes to the BTA Plan:
The following change applies to the Business Travel Accident plan only. Effective for accidents on or after July 1, 2002, for any non-business activity, including personal travel, and for accidents which are the result of the employee being under the influence of alcohol or illegal drugs will no longer be covered.
Id.
In the Summer of 2004, the Roartys had planned a vacation to Pittsburgh during the first week of August. In July, Mr. Roarty learned of an issue at a production plant for one of Scott Instruments’ suppliers. He decided to schedule a meeting at this plant while on his trip to Pittsburgh. To accommodate this meeting, he left a few days earlier than he had planned, drove separately from his wife, and brought materials that would allow him to conduct business while on his trip. The issue at the production plant was resolved without requiring an in-person meeting, but Mr. Roarty made several business calls while on his trip to Pittsburgh. He and his family attended a family wedding and engaged in several personal leisure activities'during the trip. On August 8, 2004, while driving home from Pittsburgh, his car was struck by another car, and Mr. Roarty was killed.
After the accident, Roarty was initially told by one of her husband’s coworkers that his death would be covered by the BTA Plan, and she filed a claim for benefits on September 3, 2004. LINA denied Roart/s claim, explaining in a letter that a Tyco representative had informed LINA that “Mr. Roarty was NOT on business travel at the time of the accident that caused his death.” App. 609. The letter explained that the BTA Plan only covered accidents that occurred during the course of authorized business trips and that, since Tyco had stated that Mr. Roarty was not on an authorized business trip, benefits could not be paid. Id. Roarty appealed this denial, but LINA maintained its position that no benefits were due. See App. 558-60 (letter explaining decision).
Roarty initiated the instant action by filing a complaint in the District Court for the District of Delaware on March 23, 2006. The complaint alleged that Roarty was entitled to benefits under the BTA *332Plan, that the appellants “arbitrarily and capriciously” denied her claim for benefits, that LINA breached the fiduciary duties it owed her by “summarily” denying her claim, and that the appellants breached the terms of the BTA Plan.App. 161-62.
Roarty’s claims were tried in a bench trial held on April 21, 2008. Roarty testified concerning the nature of her husband’s trip, explaining that although her family had previously planned a vacation to Pittsburgh, her husband modified his plans to accommodate business activities. She testified that she handled all of her husband’s benefits paperwork, and that her husband never received the 2002 SPD or the subsequent SMM. A colleague of Mr. Roarty’s also testified that he had never received these updated summary documents. A benefits manager for Tyco testified concerning the summary documents prepared and distributed in connection with the BTA Plan.
By Order entered September 15, 2008, 2008 WL 4221280, the District Court ordered judgment in favor of Roarty and against the appellants in the amount of $500,000, along with reasonable attorneys fees pursuant to 29 U.S.C. § 1132(g)(1). App. 4-5. Evaluating the testimony regarding Tyco’s efforts to distribute the 2002 SPD and subsequent SMM, the District Court found Mrs. Roarty’s testimony that Mr. Roarty had never received these documents, along with the testimony of Mr. Roarty’s colleague that he had not received these documents, to be credible. App. 13. The court found the testimony of the Tyco benefits manager concerning whether the 2002 SPD and SMM were actually mailed to Scott Instruments employees not to be credible. Id. The District Court concluded, “the court finds by a preponderance of the evidence that Tyco and [the distribution company] never distributed, by mail or otherwise, the 2002 SPD or the SMM to Daniel Roarty, [his colleague who testified], or any other employee at Scott Instruments.” Id. It noted that the “reason for Tyco’s failure to distribute these materials to Scott Instrument’s employees according to ... Tyco’s general practice — while perhaps due to recordkeeping errors related to Tyco’s recently acquiring the company — is not apparent from the record.” Id. at 13, n. 3.
The District Court concluded that the “SMM was ineffective because it was never distributed, by mail or otherwise, to Scott Instruments employees,” and that the “2002 SPD was similarly ineffective.” App. 17, n. 7. It further reasoned that “even if the 2002 SPD had been reasonably distributed, it would not matter” because the “relevant terms of the 2000 SPD and the 2002 SPD are the same.” Id. “While the 2002 SPD indicates it is subject to change, the specific change is not provided.” Id. Applying this court’s instruction that where a “ ‘summary plan description conflicts with the plan language, it is the summary plan description that will control’ ” id. 16 (quoting Burstein v. Ret. Account Plan for Employees of Allegheny Health Educ. and Research Found., 334 F.3d 365, 378 (3d Cir.2003)), the District Court held that “the terms of the 2000 SPD control for the purposes of Mrs. Roarty’s claim.” Id. 17.
Because the 2000 SPD provided that “Daniel Roarty was ‘covered 24 hours a day, whether traveling or not, at home, at work, on vacation, while traveling anywhere in the world id. (citations omitted), the District Court concluded LINA’s denial based on the terms of the modified BTA Plan was an abuse of discretion. Id. The District Court therefore held that “[u]nder ERISA § 502(a)(1)(B), Mrs. Roarty may recover the $500,000 due to her under the BTA Plan.” Id. Based on this finding, the District court did not *333reach Roarty’s claim that LINA breached its fiduciary duties. Id., n. 9.
On October 14, 2008, the appellants timely appealed.
II.
The District Court had jurisdiction under 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e)(1), and this Court has jurisdiction pursuant to 28 U.S.C. § 1291.
On appeal from a judgment entered after a bench trial, this court reviews “findings of fact for clear error and conclusions of law de novo.” Pell v. E.I. DuPont de Nemours & Co. Inc., 539 F.3d 292, 300 (3d Cir.2008).
III.
The District Court’s judgment in favor of Roarty relied on our holding in Burstein that “where a summary plan description conflicts with the plan language, it is the summary plan description that will control.” 334 F.3d at 378. See App. 16. As we later clarified, however, this rule applies only to the SPD in effect when an ERISA plaintiffs claim for benefits accrues. Hooven v. Exxon Mobil Corp., 465 F.3d 566, 577 (3d Cir.2006) (explaining that Burstein’s holding is “limited to its facts: where an SPD in effect when the plaintiffs benefits vest ... clearly contradicts the plan, the terms of the SPD can be held to control for purposes of a claim for plan benefits pursuant to ERISA section 502(a)(1)(B).” (emphasis in original)). In Hooven, we held that an ERISA plaintiff cannot base a claim for benefits under ERISA section 502(a)(1)(B) on an SPD that has been superseded or corrected by another document, such as an “errata notice” that effectively eliminates any conflict between the SPD and the plan language. 465 F.3d at 578. Accordingly, before Bur-stein may be applied, we must first determine the analytically distinct question of which summary document amounts to the operative summary document, the “SPD in effect.”
The District Court concluded that the 2000 SPD was the operative summary document based on its factual finding that the 2002 SPD and the SMM were not distributed to the Roartys. App. 17, n. 7. We cannot agree. The District Court assumed that Tyco’s failure to distribute these documents rendered them “ineffective,” id., but we have “repeatedly held that under ordinary circumstances defects in fulfilling the reporting and disclosure requirements of ERISA,” such as Tyco’s failure to ensure distribution of the updated summary documents in this case, “do not give rise to a substantive remedy other than that provided for in section 502(a)(1)(A) of that Act.” Ackerman v. Warnaco, Inc., 55 F.3d 117, 124 (3d Cir.1995). The remedy the District Court applied here — deeming the change in the BTA Plan ineffective based on Tyco’s failure to provide notice of the change to Scott Instruments employees— is only available upon a showing of “extraordinary circumstances.” Lettrich v. J.C. Penney Co., Inc., 213 F.3d 765, 770 (3d Cir.2000); see also Ackerman, 55 F.3d at 124-5.
As the District Court identified, “ERISA requires plan administrators to notify plan participants of material modifications to employee welfare plans.” App. 10 (citing 29 U.S.C. § 1024(b)(1); Lettrich, 213 F.3d at 769). However, the failure to comply with these notice requirements does not automatically render such a plan amendment ineffective. Rather, “even if as the result of [the employer’s] negligence ... the employees did not receive written notice” of a material modification to an ERISA benefit plan, “we are unable to conclude that ERISA provides the remedy that plaintiffs seek. Plaintiffs are limited *334to their statutory remedies under such facts.” Ackerman, 55 F.3d at 124. The “remedy of striking a plan amendment” is available only upon a showing of “extraordinary circumstances.” Lettrich, 213 F.3d at 770. In Ackerman, we listed two examples of such extraordinary circumstances, “where the employer has acted in bad faith, or has actively concealed a change in a benefit plan, and the covered employees have been substantially harmed by virtue of the employer’s actions.” 55 F.3d at 125.
Absent such a showing of extraordinary circumstances, the 2002 SPD as modified by the SMM functioned as the operative summary document. The SMM explained that, effective July 1, 2002, the BTA Plan no longer covered accidents occurring during non-business activity, including personal travel. Because the District Court assumed that Tyco’s failure to distribute the updated documents to Scott Instruments employees rendered them “ineffective” without evaluating whether Roarty had established “extraordinary circumstances,” we will remand for the District Court to consider this issue in the first instance. On remand, the District Court may also consider Roarty’s equitable claim for breach of fiduciary duty under ERISA section 502(a)(3), an issue it did not reach in the prior opinion. See App. 17, n. 9.
IV.
For the foregoing reasons, we will vacate the judgment of the District Court and remand for further proceedings consistent with this opinion. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480243/ | *362Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alonza A. Ellis 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. Ellis v. Riverside Reg’l Jail, No. 3:10-cv-00042 (E.D.Va. Feb. 4, 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/8480244/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Chester C. Griffiths appeals the district court’s order 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. Griffiths v. Hughes, No. 1:09-cv-01657-JFM, 2010 WL 1257973 (D.Md. Mar. 26, 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/8480245/ | *364Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Patrick Robinson 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. Robinson v. Janiszewski, No. 5:09-cv-00064-FPS-JSK, 2010 WL 1473692 (N.D.W.Va. Apr. 9, 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/8480246/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marqueion Harrison appeals the district court’s order dismissing without prejudice his 42 U.S.C. § 1983 (2006) complaint for failure exhaust administrative remedies.* We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Harrison v. North Carolina, No. 5:10-cv-00044-GCM, 2010 WL 1665801 (W.D.N.C. Apr. 23, 2010). We deny Harrison’s motion to appoint counsel and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
Because the record clearly establishes that exhaustion did not occur, the order is final. See Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066-67 (1993). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480247/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brenda Collins appeals the district court’s order granting summary judgment in favor of her former employer in this employment discrimination action. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Collins v. TIAA-CREF, No. 3:06-cv-00304-RJC-DSC, 2009 WL 3077555 (W.D.N.C. Sept. 23, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
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