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https://www.courtlistener.com/api/rest/v3/opinions/8480391/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jermaine Black appeals the district court’s order denying Black’s 18 U.S.C. § 3582(c)(2) (2006) motion for reduction of sentence pursuant to Amendment 599 of the sentencing guidelines. We have reviewed the record and conclude that Amendment 599 does not apply to Black’s sentence and that he is therefore not entitled to relief under § 3582(c)(2). 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https://www.courtlistener.com/api/rest/v3/opinions/8480392/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Steven Abiodun Sodipo seeks to appeal the district court’s order denying his motion for a preliminary injunction preventing the Maryland State Board of Pharmacy (“Board”) from revoking his pharmacy license following his criminal convictions. As the Board has since issued a final order revoking Sodipo’s license, however, we dismiss the appeal as moot. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid in the decisional process.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480394/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gregory Blanks appeals the district court’s order denying his motion to compel the Government to file a Fed.R.Crim.P. 35 motion on his behalf, or for a sentence reduction based upon his allegedly substantial assistance. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s order. United States v. Blanks, No. 7:04-cr-00076-FL-l (E.D.N.C. Dec. 29, 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https://www.courtlistener.com/api/rest/v3/opinions/8480395/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Victor Perkins petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his May 3, 2010 motion to vacate and dismiss the civil commitment. He seeks an order from this court directing the district court to act. Our review of the district court’s docket reveals that the district court denied the motion on May 24, 2010. Accordingly, because the district court has recently decided Perkins’ motion, we deny the mandamus petition as moot. We grant leave to proceed in forma pauperis. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480397/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael J. Sindram appeals the district court’s orders striking his “Verified Amended Complaint and Request for In-junctive Relief’ from the docket and denying his motion for leave to proceed in forma pauperis on appeal. We have reviewed the record and find no reversible error. Accordingly, we deny leave to proceed in forma pauperis on appeal and dismiss the appeal for the reasons stated by the district court. Sindram v. Robelen, No. 1:09-cv-01082-GBL-IDD (E.D. Va. Mar. 24, 2010; filed May 21, 2010 & entered June 2, 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/8480427/ | SUMMARY ORDER
After our decision in Maloney v. Cuomo, 554 F.3d 56 (2d Cir.2009) (per curiam), plaintiff James M. Maloney petitioned the Supreme Court for a writ of certiorari. The Supreme Court granted the writ of certiorari, vacated the decision of this Court, and remanded the case for further consideration in light of McDonald v. Chicago, 561 U.S. -, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).
We now.VACATE the judgment of the district court and REMAND for further proceedings consistent with the opinion of the Supreme Court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480398/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Victor Wardell Wright petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his 28 U.S.C.A. § 2255 (West Supp.2010) motion for a writ of habeas corpus. He seeks an order from this court directing the district court to act. Our review of the district court’s docket reveals that the district court denied Wright’s motion on May 26, 2010, 2010 WL 2164469. Accordingly, because the district court has recently decided Wright’s case, we deny the mandamus petition as moot. We grant leave to proceed in forma pauperis. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480399/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jarice Royal 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. Royal v. Bhagirdath, No. l:09-cv-00835-GBL-JFA (E.D.Va. Dec. 11, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480402/ | 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. Baltimore U.S. Post Office Policemen, No. 1:10-cv-01151-JFM (D.Md. May 14, 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/8480403/ | PER CURIAM: *
Maria Elena Conklin, a citizen of Honduras, has filed a petition for review of a decision of the Board of Immigration Appeals. The BIA agreed with an immigration judge’s denial of her motion to reconsider its prior denial of her motion to reopen the proceedings. We DISMISS the petition for review.
Conklin entered the United States at Miami as a non-immigrant student in 1981. The following year, she adjusted her status to lawful permanent resident after marrying a United States citizen. In 1985, Conklin was convicted of embezzlement. In October of 1986, proceedings for her removal began. After multiple changes of venue, Conklin finally appeared with counsel at a deportation hearing in New Orleans in May 1987. Conklin conceded that she could be removed but requested a waiver under then-applicable law. This led to the eventual scheduling of a new hearing just on the waiver grounds.
On October 7, 1987, a hearing concerning the waiver was held. Although Conk-lin did not attend the hearing, her attorney was present. The immigration judge determined that Conklin was properly served, had been notified of the time and place of the hearing, and had failed to appear without just cause. The immigration judge held that grounds for her removal were established by clear and convincing evidence at the May 1987 hearing. Since Conklin failed to appear at the hearing on the waiver, she did not establish her eligibility for discretionary relief. Therefore, the application for a waiver was denied, and Conklin was ordered removed.
Conklin nonetheless remained in the United States. In 2004, she applied in Miami to become a naturalized citizen. She asserted that she had never been excluded or deported and that she had never applied for any relief from exclusion or deportation. Her application was denied in light of the October 7, 1987 deportation order and accompanying warrant of deportation.
*341On May 13, 2008, over twenty years after being ordered deported, Conklin filed a motion in immigration court in New Orleans to reopen her proceedings. As a basis, Conklin claims that she did not receive proper notice of the October 7, 1987 hearing on her waiver application, the in absentia order, or the warrant of deportation. The immigration judge denied Conk-lin’s motion to reopen, and later denied her motion to reconsider the denial. The BIA affirmed.
Before this court, Conklin contends that the immigration judge erred by applying an “exceptional circumstances” standard to her motion to reopen instead of the “reasonable cause” standard that applies in deportation proceedings initiated before 1992. She asserts that she meets the reasonable cause test because confusing circumstances caused her to miss her deportation hearing in 1987. In addition, Conklin asserts that the immigration judge erred by deciding her motion to reconsider based upon a reconstituted record after the original record was destroyed. She argues that the reconstituted record did not provide enough factual information to support a proper determination on the motion to reopen and that the record would have been more complete if she had received an evidentia-ry hearing. Conklin also contends that the BIA erred in finding that her motion to reopen was time barred because there is no time limitation for a motion to reopen when the deportation order was issued before June 13, 1992.
Section 1252 of Title 8 prohibits this court from reviewing a final order of removal unless “the alien has exhausted all administrative remedies available to the alien as of right.” § 1252(d)(1); Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir.2004). An alien fails to exhaust administrative remedies for an issue when that issue “is not raised in the first instance before the BIA — either on direct appeal or in a motion to reopen.” Roy, 389 F.3d at 137 (internal quotation marks and citation omitted). Because Conklin did not raise these claims initially before the BIA, we lack jurisdiction to consider them. See § 1252(d)(1); Roy, 389 F.3d at 137.
The petition for review is DISMISSED.
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/8480404/ | PER CURIAM: *
Richard B. Tobias, a sanctioned litigant, moves for leave to continue his appeal and to proceed in forma pauperis (IFP) in his appeal from the district court’s grant of summary judgment in favor of defendant Ken Price and the dismissal of Tobias’s complaint filed pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. *3751999, 29 L.Ed.2d 619 (1971). The district court found that Price, a Court Security Officer for Judge Buchmeyer, was entitled to absolute judicial immunity and qualified immunity from Tobias’s claim that Price wrongfully removed Tobias from the courtroom during a contempt hearing for another individual who was a litigant with Tobi-as in an unrelated case. The district court also dismissed the instant complaint as to two other defendants. However, Tobias has failed to brief any error arising from the dismissal of these defendants. Because he fails to identify any error in the district court’s dismissal of the complaint in this regard, any argument is abandoned. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.1987).
Tobias argues that Price is not entitled to absolute immunity because he did not present a written order from Judge Bu-chmeyer authorizing Price to remove Tobi-as from the courtroom. There is no legal authority for this proposition. Tobias fails to present an argument which would show that Price’s actions fall within the exceptions to absolute judicial immunity. See Mireles v. Waco, 502 U.S. 9, 11-12, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991); Clay v. Allen, 242 F.3d 679, 682 (5th Cir.2001).
The remainder of Tobias’s arguments are conclusory assertions that Judge Bu-chmeyer and Price had no authority to harass and abuse him as a litigant. Tobias fails to state a violation of a clearly established constitutional right or show that Price acted unreasonably in removing him from the courtroom. See Illinois v. Allen, 397 U.S. 337, 343-44, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970).
Tobias’s motion and appeal are frivolous and without arguable merit. See Howard v. King, 707 F.2d 215, 219-20. Accordingly, his motions to continue his appeal and to proceed IFP are DENIED.
This court previously sanctioned Tobias for filing frivolous appeals and warned him that the filing of repetitious or frivolous actions would invite the imposition of additional sanctions. See Groden v. Allen, 236 Fed.Appx. 884 (5th Cir.2007). Accordingly, we order Tobias to pay $500 in sanctions to the Clerk of this court.
Tobias is BARRED from filing in this court or in any court subject to this court’s jurisdiction any appeal, motion, and/or pleading in connection with this case until the total amount of the sanction imposed is paid in full. Tobias is further BARRED from filing any pro se, in forma pauperis, civil appeal in this court, or any pro se, in forma pauperis, except for complaints that Tobias is under imminent danger of serious physical injury, initial civil pleading in any court subject to this court’s jurisdiction until the total amount of the sanction imposed is paid in full. Any submissions that do not show proof that the sanction has been paid will be neither addressed nor acknowledged. Upon proof that the sanction has been paid, Tobias is required to seek advance written permission of a judge of the forum court before filing any pro se, in forma pauperis, civil appeal, or any pro se, in forma pauperis, initial civil pleading. The Clerk of this court and the Clerks of all federal district courts in this Circuit are directed to return to Tobias, unfiled, any attempted submission inconsistent with this bar. Tobias is cautioned that any future frivolous or repetitive filings in this court or any court subject to this court’s jurisdiction will subject him to additional sanctions.
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/8480405/ | ORDER
Terrance Edwards, a Wisconsin prisoner, filed this lawsuit under 42 U.S.C. § 1983, claiming that five correctional officers used excessive force against him. Before trial the district court denied Edwards’s request for the recruitment of counsel. The court granted the defendants’ motion to exclude Edwards’s medical records reflecting the treatment that he received after the incident, concluding that the records were inadmissible hearsay. The court also excluded state administrative regulations describing the proper use of force. A jury found in favor of the defendants, and the district court denied Edwards’s motion for a new trial. Edwards appeals, but because we conclude that none of his arguments warrant a new trial, we affirm.
The basic events are undisputed. A correctional officer observed Edwards cutting his arm with a razor in the shower of the segregation unit. The officer called for assistance and ordered Edwards to hand over the razor, but Edwards refused and continued to cut his arm. After officers twice sprayed Edwards with a chemical agent, he relinquished the razor and placed his hands through the cell door, allowing them to place him in handcuffs. *525The officers then placed Edwards in full restraints and escorted him to a cell for a strip search. In the process, the officers twice used force: the officers first forced Edwards to kneel in order to apply leg restraints and later banged his head into a cell door.
At trial Edwards elaborated on these events as follows. Once he relinquished the razor, the officers handcuffed him and tethered him to the shower cell door in order to place him in full restraints. The officers first applied a waist restraint and then ordered him to kneel before applying leg restraints. But he could not comply because the waist restraint was tethered to the door and it was too short to allow him to kneel. Officers ordered him to “stop resisting” and kicked him in the ribs, but ultimately applied the leg restraints while he remained standing. Once they escorted him to the strip cell, one of the officers pulled on his right arm, causing the handcuffs to overstretch his wrist. When he complained, another officer banged his head against the door. After the incident, he was treated for a knot on his forehead and has continued to experience tingling in his hands and frequent headaches. He takes prescription medications to control the headaches and keeps a headache diary to monitor his pain.
Five officers furnished a slightly different account, focusing on why they applied force but not disputing that their use of force injured Edwards. According to the officers, Edwards was not wearing the waist restraint when they ordered him to kneel. When he disobeyed their order, they “assisted him” to a kneeling position so leg restraints could be applied. The waist restraint, the officers testified, was applied after Edwards’s legs were secured. After escorting him to the strip cage, a nurse evaluated Edwards and concluded that the self-inflicted cuts on his arm were superficial. Edwards remained in full restraints while the officers conducted a strip-search, but he again became agitated and aggressive and lunged at one of the officers. In an attempt to protect his colleague and to subdue Edwards, a second officer “directed” him into the cell door, a technique called a “vertical wall stun.” Edwards was subdued, cleaned, and placed in an observation cell.
At the close of evidence but before closing arguments, the jury submitted five questions to the judge. They asked for additional information about the reasons a prisoner might be placed in segregation and whether those reasons would affect the officers’ actions in dealing with a prisoner, whether any of the defendants had kicked Edwards when he was cuffed to the shower door or witnessed Edwards being kicked, what Edwards might have done if he had not been placed in restraints, and, lastly, the jury asked the defendants to describe “lunging” and “the vertical wall stun.” Over Edwards’s objection, the district court decided not to answer the questions because the evidence portion of the trial was complete, and it instead instructed the jury to consider the evidence presented during the trial. The court also refused Edwards’s request that the jury be instructed on joint and several liability, explaining that the special verdict form reflected that if the jury found any one of the defendants had used excessive force, Edwards would be entitled to full damages. The jury returned a verdict in favor of the defendants, and the district court denied Edwards’s motion under Federal Rule of Civil Procedure 59(a) for a new trial.
We review a district court’s denial of a motion for a new trial for abuse of discretion and will not set aside a verdict unless the moving party suffered prejudice from the asserted error. Happel v. Walmart Stores, Inc., 602 F.3d 820, 826 (7th Cir.2010). Edwards first challenges the *526district court’s evidentiary ruling excluding his medical records as inadmissible hearsay. The records included “progress notes” recorded by the nurse during two examinations of Edwards on the day of the incident and later in follow-up visits. In her initial examination, the nurse noted only that Edwards had superficial cuts on his left forearm. In an examination an hour later, Edwards reported a “hiekey” on his head, which he told her he had received when the officers “were handling him roughly.” He also reported that his wrist was injured and his fingers were numb. The nurse noted a bump on his forehead and found Edwards’s wrist tender to the lightest touch but reported no swelling or restricted movement. In the following weeks, Edwards complained of frequent headaches and was prescribed Propranolol for headache prevention and Excedrin for pain.
In denying Edwards’s motion for a new trial, the district court concluded that although the records may indeed have been admissible, no new trial was warranted. The court concluded that the records would not have been materially helpful in establishing Edwards’s case because, as the court read them, the records suggest that Edwards had exaggerated his symptoms, and in any case, show only that force was used, an element essentially uncontested by the defendants. Finally the court noted that Edwards was able to testify about his injuries, and, thus, had suffered no prejudice.
We agree that the proffered medical records would not have changed the outcome at trial because they do not rebut the officers’ defense, which the jury accepted, that Edwards’s resistance justified their use of force. Although the officers testified somewhat euphemistically about the force they used (they “assisted” him to a kneeling position and “directed” him into the door), they did not contest that their force produced bruised ribs, sore wrists, or an injured head. The medical records would merely have confirmed those uncontested injuries. The officers disputed Edwards’s claim that he complied with their orders to submit. But because the medical records would not have provided any material support for Edwards’s contention that he was compliant, their exclusion was thus harmless.
Edwards also challenges the district court’s decision to exclude evidence of the prison’s administrative code. Edwards sought to admit specific code provisions regarding the permissible use of mechanical restraints and the prohibition against corporal punishment to show that the officers knowingly violated these rules. But the relevant issue at trial was whether, as a matter of the federal Constitution’s ban on cruel and unusual punishment, the officers used force maliciously and sadistically and not for the purpose of restoring order. See Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). The state code provisions were not relevant to this federal issue and therefore could have led to confusion of the relevant issues, a proposition that we have repeatedly affirmed within the context of excessive-force cases. See Thompson v. City of Chicago, 472 F.3d 444, 454-57 (7th Cir.2006); Scott v. Edinburg, 346 F.3d 752, 760-61 (7th Cir.2003).
Next, Edwards contends that the district court erred in refusing to answer the jury’s questions and in refusing to instruct the jury on a theory of joint liability. The district court has broad discretion in responding to a juror’s question, and we review a district court’s answer to the question for abuse of discretion. Deicher v. City of Evansville, Wis., 545 F.3d 537, 541 (7th Cir.2008); United States v. Watts, 29 F.3d 287, 291 (7th Cir.1994). The questions here all sought additional evidence not provided by either party, and answer*527ing the questions would have required the court to reopen the evidentiary portion of the trial. Both parties had already had a full opportunity to present evidence, and the district court’s decision to direct the jury to consider the trial evidence was reasonable.
The court also properly rejected Edwards’s proposed jury instruction regarding joint and several liability because the special verdict form sufficiently explained the applicable law that, if the jury found that any one of the defendants had used excessive force, the jury should determine the total amount of money necessary to compensate Edwards. See Fox v. Hayes, 600 F.3d 819, 843 (7th Cir.2010); Fillmore v. Page, 358 F.3d 496, 507 (7th Cir.2004). Edwards cites Fillmore as support for an instruction on joint liability, but there we explained that “joint liability is appropriate only where all of the defendants have committed the negligent or otherwise illegal act, and so only causation is at issue.” Fillmore, 358 F.3d at 507. Here, the jury found no one hable, and given that verdict, Edwards does not explain how the court’s ruling prejudiced his case. See Fox, 600 F.3d at 843; Deicher, 545 F.3d at 542-43.
Finally, Edwards argues that the district court should have recruited counsel to represent him. Edwards asserts that the court did not inquire into his competence and ignored an affidavit of his fellow prisoner, James Schmeisser, when denying his motion for a new trial. In the affidavit, which he submitted with his motion for a new trial, Schmeisser explained that he had been assisting Edwards throughout the case, but could no longer assist him. He asserted that Edwards had been unable to litigate the case on his own because his incarceration made it difficult to investigate the relevant issues.
Before a district court may recruit pro bono counsel, see 28 U.S.C. § 1915(e)(1); Mays v. Springborn, 575 F.3d 643, 650-51 (7th Cir.2009); Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir.2007) (en banc), it must consider the difficulty of the case relative to the plaintiffs competence to litigate it himself, Pruitt, 503 F.3d at 649. We review that assessment for an abuse of discretion in light of the information available to the district court at the time it made the decision, and we will reverse only upon a showing of prejudice. Id. at 658-59. Here, the Schmeisser affidavit was not before the district court when it denied Edwards’s pretrial request for counsel, and therefore the district court did not abuse its discretion in not considering it.
In all other respects, too, the district court’s decision was reasonable. In his request for counsel, Edwards simply stated that he (like almost any pro se litigant) lacked trial experience and that counsel could better litigate issues of credibility and demonstrate how the restraints were used to prevent him from kneeling. But under Pruitt, the relevant question is not whether a lawyer would be more effective; rather, it is whether the case’s complexity exceeds Edwards’s ability to present it to a jury coherently. 503 F.3d at 655. And in his request for counsel, Edwards presented no reason to believe that he lacked the education and skill to make a coherent presentation of what the district court fairly saw as a relatively straightforward case. Therefore, the district court reasonably concluded that Edwards was capable of presenting his side of the story — including describing and demonstrating how the restraints were applied — without the assistance of counsel.
Accordingly, we AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480409/ | ORDER
Arturo Ramirez, Jr., pleaded guilty to possession of a controlled substance with the intent to distribute. See 21 U.S.C. § 841(a)(1). He was sentenced to 300 months’' imprisonment. He appeals, but his appointed counsel seeks to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct., 1396, 18 L.E&2d 493 (1967), because- he cannot identify any nonfrivo-lous issues to raise on his client’s behalf. Ramirez objects to counsel’s motion. See Cir. R. 51(b).. Confining our review to the potential issues identified in counsel’s facially adequate brief and Ramirez’s objection, see United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002), we grant counsel’s motion to withdraw and dismiss Ramirez’s appeal.
Ramirez was behind the wheel of a tractor-trailer truck when a police officer pulled him over for driving with a broken windshield. Ramirez consented to a search of the trailer. Inside, the officer uncovered bales of marijuana and a container of cocaine hidden among boxes of avocados. Ramirez admitted that he had been paid to transport the drugs cross-country.
After his motion to suppress evidence was denied, Ramirez agreed to plead guilty to possession of a controlled substance with the intent to distribute. See 21 U.S.C. § 841(a)(1). He further agreed to waive his right to appeal his conviction and sentence. A magistrate judge thoroughly reviewed the agreement with Ramirez and explained each of the considerations enumerated in Federal Rule of Criminal Procedure 11(b)(1). Concluding that Ramirez’s plea was knowing and voluntary, the magistrate judge recommended accepting the agreement. The district judge adopted the recommendation.
Five months later Ramirez filed a pro se motion to withdraw his guilty plea. He argued that the government had. not signed the agreement in his presence and that his lawyer had been ineffective-during the suppression hearing. The magistrate judge recommended denying the motion, reasoning that, because Ramirez was represented by counsel, the court had no obligation to accept his pro se filing. But even if the motion were properly before the court, the magistrate judge continued, Ramirez had not established any fair or just reason to withdraw his plea. In particular the magistrate judge concluded that Ramirez’s assertion that his lawyer was ineffective not only lacked support in the record but also contradicted the sworn statements he made during the change-of-*537plea colloquy. Again the district judge adopted the recommendation.
We are somewhat puzzled by counsel’s representation that “Mr. Ramirez has not instructed [him] to find some reason to set aside the plea agreement.” (Br. at 13.) If that were so, then counsel would have no duty to discuss — and we would not review — the adequacy of the plea colloquy or the voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002). But in his Rule 51(b) submission Ramirez unambiguously declares “I do need [counsel] to argue my Motion to withdraw my Guilty Plea.” And indeed elsewhere in his brief counsel considers arguing that Ramirez’s plea must be set aside, either because it failed to comply with the requirements of Rule 11 or because Ramirez’s pro se motion to withdraw the plea should have been granted. Our review of the record, however, confirms counsel’s assessment that the magistrate judge fully complied with Rule 11 during the change-of-plea colloquy. See Schuh, 289 F.3d at 974. As for Ramirez’s pro se motion to withdraw his plea, counsel properly notes that his client had no “right” to file a pro se motion while he was represented by a lawyer. See United States, v. Patterson, 576 F.3d 431, 436-37 (7th Cir.2009) (internal citation omitted). We would not conclude that the district court abused its discretion in refusing to allow this “disfavored” form of hybrid representation. See id. Thus it would be frivolous to argue that Ramirez’s plea agreement must be set aside. And because his appeal waiver “stands or falls with the rest of the bargain,” see United States v. Whitlow, 287 F.3d 638, 640 (7th Cir.2002), any additional appellate arguments — about either the suppression hearing or Ramirez’s sentence — would be frivolous too.
Ramirez’s Rule 51(b) response does renew his allegations that his lawyer performed ineffectively during the suppression hearing. But any further pursuit of this claim, whether by appeal or collateral attack, is also barred by the waiver.
We Grant counsel’s motion to withdraw and Dismiss Ramirez’s appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480410/ | ORDER
John Whitlow pleaded guilty to mail fraud, money laundering, and filing a false tax return, 18 U.S.C. §§ 1951, 1956(a)(1)(B)®, 1957, and was sentenced to 108 months’ imprisonment with three years’ supervised release. He began supervised release in 2008, but in November 2009 his probation officer petitioned for revocation because Whitlow admitted he violated his supervised release conditions by applying for credit without permission. The district court revoked his release and ordered him to serve another 8 months’ imprisonment with an additional 16 months’ supervised release. Whitlow appeals, but his appointed counsel has moved to withdraw because he cannot identify any nonfrivolous argument to pursue. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Whit-low has not accepted our invitation to comment on counsel’s motion. See CIR. R. 51(b). We confine our review to the potential issues outlined in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Counsel first tells us that Whitlow wants to challenge his waiver of a revocation hearing, but finds no potential challenge. A revocation hearing may be knowingly and voluntarily waived if the defendant knows the charge against him and is advised of the rights being waived. United States v. LeBlanc, 175 F.3d 511, 517 (7th Cir.1999). Rule 32.1 outlines the procedural rights required to revoke supervised release: written notice of alleged violations, disclosure of the evidence against the defendant, the right to appear and present evidence, representation by counsel, and the right to make a statement in mitigation, Fed.R.Crim.P. 32.1(b)(2); United States v. Neal, 512 F.3d 427, 435 n. 8 (7th Cir.2008). The district court directly advised Whitlow, and he specifically acknowledged as much, that he was giving up each of these rights. Any challenge to his waiver would be frivolous.
Counsel next considers whether Whitlow could challenge the court’s decision to revoke his supervised release, but concludes that a challenge would be frivolous. A district court may revoke supervised release if, by a preponderance of the evidence, it determines that the defendant violated a supervised release condition. 18 U.S.C. § 3583(e)(3); Johnson v. United States, 529 U.S. 694, 700, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000); United States v. Flagg, 481 F.3d 946, 949 (7th Cir.2007). *539Whitlow’s supervised release conditions forbade him from applying for credit without first getting his probation officer’s permission, and Whitlow’s admission that he applied for (and received) credit six times between July and November 2008 conclusively establishes that he violated these conditions.
Finally counsel considers whether Whit-low might challenge his reimprisonment term as plainly unreasonable. See United States v. Kizeart, 505 F.3d 672, 674 (7th Cir.2007). Before imposing the 8-month term, the district court here correctly determined that the guidelines counseled a 4 to 10 month imprisonment range. See U.S.S.G. § 7B1.4. The court then considered the appropriate sentencing factors in 18 U.S.C. § 3553(a), noting that Whitlow was convicted of a very serious fraud, id § 3553(a)(1), and that even though he still owed more than $600,000 in restitution he flouted the court’s order and ran up an additional $13,000 in new credit charges beginning even before he left prison, id. § 3553(a)(2)(A), (C). The court also noted that Whitlow’s additional credit applications have jeopardized his ability to make restitution payments to the original victims of his crime, id. § 3553(a)(7). We agree that any challenge to Whitlow’s imprisonment term as plainly unreasonable would be frivolous.
Accordingly, counsel’s motion to withdraw is GRANTED and the appeal is DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480411/ | ORDER
Anil Goyal appeals the district court’s order enforcing an attorney’s lien in favor of Childress Duffy Goldblatt, Ltd. (“CDG”). CDG had represented Goyal in a suit against his former employer, Gas Technology Institute (“GTI”) before it withdrew, purportedly because of Goyal’s recalcitrance in negotiating a settlement. Shortly after CDG’s withdrawal, Goyal settled with GTI. CDG moved to enforce an attorney’s lien for the reasonable value of its services, and the district court granted the motion. We affirm in part and vacate and remand in part.
I.
In September 2005 Goyal sued GTI under the False Claims Act, 31 U.S.C. § 3730(h), and Illinois common law, alleging that he was fired in retaliation for reporting a fraud committed by his superiors. In March 2006 Goyal retained CDG to represent him. In the retainer agreement, CDG agreed to represent Goyal on a contingency fee basis, with Goyal to pay CDG 25% of any amounts recovered, through settlement or otherwise, plus costs. As relevant here, that agreement instructed Goyal that “[o]ne of your most important obligations under this contract is not to unreasonably withhold your consent to a settlement.” If, by his conduct, CDG were required to withdraw, the agreement further provided that CDG would be reimbursed for attorneys’ fees and costs and granted a lien on the case in that amount:
*541Should it become necessary for us to withdraw as a result of your conduct, you agree to reimburse all expenses and costs we have advanced or obligated our firm to pay on your behalf, and to pay for the reasonable value of our legal services up to the time of the withdrawal, and you hearby grant us a lien on your case in that amount.
The case was initially handled by CDG attorneys Roy Brandys and Ryan Haas, but after both men left the firm, Christopher Mammel and Victor Jaeobellis were assigned to the case.
In December 2007, after nearly two years of discovery, GTI moved for summary judgment and the parties began their first round of settlement negotiations. In preparation, Mammel sent Goyal an e-mail outlining his estimates as to Goyal’s possible recovery were the case to proceed to trial. Mammel estimated that under the worst-case scenario, Goyal would be awarded nothing and found liable on GTI’s counterclaim; under the “most likely” scenario, he would be awarded approximately $2.25 million or more; and under the “best case” scenario, he would receive $4.14 million or more. Mammel further explained that the best-case scenario was “not likely” and that the uncertainty of the most likely scenario was “still troubling.” Mammel recommended that Goyal offer to settle for $1 million, noting that the likelihood that Goyal would net $2 million was “very low.” Goyal immediately rejected this amount, responding that he wanted to net $2.25 million after attorneys’ fees. Mammel objected to Goyal’s approach, stating, “I do not believe the financial results you hope to achieve are reasonable under the circumstances of this case.” Nevertheless, Mammel sent GTI a demand letter for $4 million.
At the parties’ first settlement conference in March 2008, GTI responded with an offer of $91,000. The magistrate judge at one point addressed the possible outcomes at trial, and noted that a jury in a best-case whistleblower action could award as much as $10 million, though such an award was unlikely and could be remitted by the court. Goyal rejected GTI’s offer.
In September 2008 the district judge denied GTI’s motion for summary judgment, and discussions grew more strained between Goyal and Mammel regarding settlement. Goyal informed Mammel that, based on the summary judgment outcome and a recent favorable deposition, he wished to increase his demand. Mammel tried to dissuade Goyal from such a stance, stating that his initial demand of $4 million was more than double his actual damages. Believing that Goyal’s settlement expectations were unreasonable, Mammel offered to modify CDG’s retainer agreement — reducing CDG’s attorneys’ fees to $250,000— if Goyal reduced his settlement demand to $2.6 million. Goyal rejected the proposal, in part because CDG would not agree to modify his liability for attorneys’ fees if CDG withdrew. Instead he instructed Mammel to demand $4.6 million, noting that this figure was “still less than 50% of what the Magistrate Judge stated that I could potentially get.” Mammel responded that Goyal’s- increased demand was unreasonable, and advised that “given the circumstances and risks of this case that exist, it is unreasonable to fail to make a good faith effort to settle.”
One week later Goyal e-mailed Mammel, instructing him to relay immediately a new settlement demand of $5.5 million. Mam-mel initially balked, responding that the proposed amount did not reflect the merits of his claims and represented an “extortion value.” Goyal met with Mammel the next day, and the two discussed the possibility of CDG’s withdrawal. Goyal justified his increased amount, stating that his initial proposal of $4.6 million had not included *542possible punitive damages or lost royalty-income. Mammel sent GTI a $5.5 million settlement demand, to which GTI counter offered $750,000.
At a second settlement conference in December 2008, the magistrate judge recommended a $1.6 million settlement amount, which both parties rejected. The next day, GTI offered Goyal $1 million. Mammel suggested that Goyal make a counteroffer, and Goyal reiterated that he wanted $3 million “in my pocket.”
Goyal and Mammel attempted to discuss a possible counteroffer, but their communications continued to deteriorate. Mammel informed Goyal that he could not recommend a settlement counteroffer because Goyal was no longer consulting with him about his settlement strategy or goals. Goyal accused Mammel of simply wanting to “get out of trial” and complained that Mammel’s handling of the case was deficient and had weakened his bargaining position. On December 15, 2008, Mammel moved to withdraw. The district judge granted his request.
In April 2009 Goyal and GTI reached a tentative settlement agreement for $1.3 million. CDG then notified Goyal that it claimed an attorney’s lien against any settlement. Goyal and GTI jointly moved to quash CDG’s lien. The district judge denied the motion, determining that the language of CDG’s retainer agreement with Goyal gave rise to an equitable attorney’s lien under Illinois law.
CDG moved to enforce the lien, arguing that its withdrawal had been justified because Goyal had unreasonably refused to settle. Under the terms of the retainer agreement, CDG contended that Goyal owed it the full 25% of the settlement amount or the reasonable value of its services. The district judge referred the matter to the magistrate judge, who granted the motion on the basis that CDG was entitled to the reasonable value of its services worth $215,550. Under Illinois law, the magistrate judge explained, an attorney is entitled to reasonable compensation on a quantum meruit basis for services provided before his justifiable withdrawal. Citing Kannewurf v. Johns, 260 Ill.App.3d 66, 198 Ill.Dec. 381, 632 N.E.2d 711, 714 (1994), the magistrate judge noted that an attorney’s withdrawal from a contingent fee case is justified if a client unreasonably refuses to negotiate toward settlement, causing a “complete breakdown” in the attorney-client relationship. The magistrate judge found that Goyal had ignored CDG’s advice and that a simple review of Goyal’s escalating settlement demands suggested unreasonableness. Goyal, the magistrate judge added, also misconstrued his comment that a jury “could award $10 million,” as his statement was only “meant to emphasize the dramatic gamble parties take when they try a ease to a jury.” Finally, the magistrate judge concluded, Goyal’s complaints that CDG had mismanaged the case were irrelevant and unfounded. In December 2009 the district judge adopted the magistrate judge’s order in full.
II.
Before discussing the merits of Goyal’s appeal, we first address three threshold arguments posed by CDG. First, CDG argues that we lack jurisdiction because Goyal appeals not a final decision of the district court but an order of the magistrate judge, and the parties never consented to a magistrate judge presiding over the case. See 28 U.S.C. § 636(c). However, the final judgment in this case was entered not by the magistrate judge, but by the district judge in her December 2009 order. When a party proceeds pro se, as Goyal does here, we liberally construe his filings to find the requirements of a notice of appeal satisfied, Smith v. Barry, 502 U.S. 244, 248, 112 S.Ct. 678, 116 L.Ed.2d 678 (1992); *543Smith v. Grams, 565 F.3d 1037,1041-42 (7th Cir.2009). Because Goyal specified in his notice that he was appealing “from an order granting the equitable lien,” we find no jurisdictional defect.
CDG next argues that Goyal waived any challenge to the magistrate judge’s enforcement order because he did not file an objection to it as required under Federal Rule of Civil Procedure 72(b). CDG is correct that Goyal did not object to the magistrate judge’s order, and we would normally conclude that such an omission waives the right to appeal. See United States v. Hall, 462 F.3d 684, 688-89 (7th Cir.2006); United States v. Brown, 79 F.3d 1499,1503-04 (7th Cir.1996); Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538, 539 (7th Cir.1986). But the magistrate judge’s order did not warn Goyal of the consequences of failing to object, and thus we cannot treat his right to appeal as waived. See Provident Bank v. Manor Steel Corp., 882 F.2d 258, 261 (7th Cir. 1989); United States v. Young, 585 F.3d 199, 201 (5th Cir.2009); see also Hall, 462 F.3d at 688-89; Brown, 79 F.3d at 1505; Ross v. United States, 910 F.2d 1422,1432 (7th Cir.1990).
Third, CDG contends that Goyal’s appeal must be dismissed for a failure to meet the requirements for an appellate brief under Federal Rule of Appellate Procedure 28(a)(9). We disagree; Goyal’s pro se brief provides much more than a “generalized assertion of error.” Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir.2001). As required by Rule 28(a)(9), Goyal’s brief takes issue with the magistrate judge’s findings on several issues and contains citations to the record and cases as support for his contentions. See Fed. RApp. P. 28(a)(9); Anderson v. Litscher, 281 F.3d 672, 675 (7th Cir.2002).
We turn next to Goyal’s arguments. He contends first that the magistrate judge clearly erred in finding that he unreasonably refused to settle, thereby justifying CDG’s withdrawal. See Fed.R.Civ.P. 52(a); Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); Allstate Ins. Co. v. Sunbeam Corp., 53 F.3d 804, 806 (7th Cir.1995). He asserts that the magistrate judge failed to consider his settlement demands within the context of CDG’s estimate that a jury award of $2.25 million was “most likely” and ignored evidence of Mammel’s purported missteps, which he believes weakened his ultimate bargaining position. Based upon our review of the record, we cannot conclude that the magistrate judge clearly erred in finding that Goyal’s actions justified CDG’s withdrawal. An attorney is entitled to compensation, “if his sole reason for withdrawing is because his clients do not want to negotiate a case in the manner he thinks best,” causing a “complete breakdown” in the attorney-client relationship. Kannewurf, 198 Ill. Dec. 381, 632 N.E.2d at 714-16. First, the magistrate judge adequately considered Goyal’s complaints about the quality of Mammel’s representation but deemed those assertions unfounded, given Mam-mel’s success in fending off GTI’s motion for summary judgment and obtaining increased settlement offers from the company. Furthermore, as the magistrate judge noted, Goyal repeatedly spurned Mam-mel’s suggested demand proposals, which had the effect of fracturing the attorney-client relationship, making it unreasonably difficult for CDG to carry out its representation. See McGill v. Garza, 378 Ill. App.3d 73, 317 Ill.Dec. 251, 881 N.E.2d 419, 422 (2007); Kannewurf, 198 Ill.Dec. 381, 632 N.E.2d at 714-16; Leoris & Cohen, P.C. v. McNiece, 226 Ill.App.3d 591, 168 IlLDec. 660, 589 N.E.2d 1060, 1064-65 (1992); Reed Yates Farms, Inc. v. Yates, 172 Ill.App.3d 519, 122 Ill.Dec. 576, 526 N.E.2d 1115, 1124-25 (1988). Goyal tries to distinguish his case from Kannewmf on *544grounds that his likelihood of winning at trial was substantially higher and that he did not refuse to participate in negotiations. But Goyal misses Kannewurfs broader holding, which is that an attorney may withdraw from a contingent fee case and seek reasonable compensation for his services when a client’s actions in rejecting his attorney’s professional judgment result in a complete breakdown of the attorney-client relationship. See Kannewurf, 198 Ill.Dec. 381, 632 N.E.2d at 716; Leoris & Cohen, P.C., 168 Ill.Dec. 660, 589 N.E.2d at 1064-65; Reed Yates Farms, Inc., 122 Ill.Dec. 576, 526 N.E.2d at 1124-25.
Goyal also challenges the magistrate judge’s calculation of the reasonable attorney’s fees due. Goyal contends that the magistrate judge abused his discretion by accepting CDG’s inflated hourly billing rate for attorney Victor Jacobellis. Even though CDG invoiced Jacobellis’s hourly rate at $300, it had billed an insurance company for Jacobellis’s work in a related case at only $225. The fees for Jacobel-lis’s services were substantial, given that he had billed 138 hours to Goyal’s case.
The magistrate judge erroneously relied on the parties’ retainer agreement to support Jacobellis’s increased rate. In his order, the magistrate judge broadly stated that the attorneys’ billing rates were consistent with the rates mentioned in the retainer agreement. But as Goyal notes, the retainer agreement did not include an hourly rate for Jacobellis, and thus the magistrate judge’s reasoning is contrary to the record evidence-and was an abuse of discretion. See id. at 716; see also Gastineau v. Wright, 592 F.3d 747, 748 (7th Cir.2010). We therefore remand the case to the district court to consider the reasonable hourly rate for Jacobellis in the first instance.
Finally, Goyal also contends that the final invoice provided by CDG included a number of charges for work unrelated to this case. But Goyal raised this argument for the first time in his reply brief, and thus we will not consider it. See Bodenstab v. County of Cook, 569 F.3d 651, 658 (7th Cir.2009).
Accordingly, we AFFIRM the judgment of the district court with regard to the enforcement of CDG’s attorneys’ lien and VACATE and REMAND for consideration of the reasonable value of Jacobellis’s services. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480412/ | ORDER
Taurean Hayden pleaded guilty to possessing with intent to distribute 500 or more grams of cocaine, see 21 U.S.C. § 841(a)(1), and carrying a firearm in relation to drug trafficking, see 18 U.S.C. § 924(c). In his plea agreement, Hayden waived his right to appeal the conviction and sentence but reserved his right to appeal the district court’s denial of his motion to suppress evidence recovered from his car during a traffic stop, as well as the drug quantity attributable to him. The district court sentenced him to 188 months for the drug offense and a consecutive term of 60 months for the firearm offense. Hayden filed a notice of appeal. His appointed counsel, however, moves to withdraw because he has concluded that any appellate argument would be frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Hayden opposes counsel’s motion. See Cm. R. 51(b). We review only those potential issues identified by counsel in his facially adequate brief and by Hayden in his response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
On March 9, 2007, police conducted surveillance of a house on Oliver Street in Fort Wayne, Indiana. Parked in front of the house was Hayden’s Grand Prix. Three times, a different car pulled up to the house, stayed for only a few minutes, and as each car drove away, it was stopped by police, who arrested the driver for drug possession. One of those drivers, DeSh-awn Burnett, dropped a kilogram of cocaine as he attempted to flee the police.
Next, detectives followed Hayden leaving the house in the Grand Prix. They saw him drive evasively and commit several traffic violations. Detective Darrick En-gelman, who had been in continuous radio contact with the detectives conducting surveillance, effected a traffic stop. The detective smelled the odor of burnt marijuana emanating from Hayden’s car, so he placed Hayden in the back of the squad car. The detective asked Hayden for his consent to search the car, but Hayden refused. Engelman then told Hayden that he would run a canine search, after which Hayden twice agreed to allow a search of the car. Engelman found a small amount of what he believed to be marijuana on the floor of the front passenger seat. After an officer searched the perimeter of the car with his drug sniffing dog, the officers searched the trunk and interior of the car and found two hidden trap compartments, *547one of which contained two kilograms of cocaine in packaging similar to the cocaine discarded by Burnett. A later search uncovered behind the radio a third trap compartment, which concealed a handgun.
Police next obtained warrants to search two houses in Fort Wayne that were connected to Hayden. At a house on Knoll-crest Avenue, officers found 4.01 grams of marijuana and mail addressed to Hayden. At a house on Salt Trail Canyon Pass, officers found over $12,159 in cash in a kitchen drawer, $100,000 hidden in the fireplace, and $282,589 in the trunk of a Dodge Charger that was parked in the attached garage. In the Charger, police also found Hayden’s identification card.
Hayden moved, unsuccessfully, to suppress evidence recovered during the stop and search of the Grand Prix. First, the court found that because Engelman had been in constant radio contact with the surveillance officers, Engelman’s stop of the Grand Prix was supported by both reasonable suspicion of drug trafficking and probable cause to believe that he had committed traffic violations. Second, the court concluded that Hayden’s consent to the search was voluntary and, regardless, the smell of marijuana, the canine sniff, and the marijuana seen on the floorboard supported the search of the trunk and the hidden compartments.
Hayden entered a conditional plea of guilty, waiving his right to appeal the conviction and sentence with two exceptions; he reserved his right to appeal the district court’s denial of his motion to suppress and the drug quantity attributable to him. At sentencing the district court calculated the drug quantity based on the drugs discovered in Hayden’s Grand Prix, the drugs and money found in the two houses, and the kilogram of cocaine discarded by Burnett. Over Hayden’s objection, the court attributed to Hayden the cocaine discarded by Burnett given his arrest just minutes following his meeting with Hayden at the Oliver Street house, where Hayden appeared to be dealing cocaine. The court further overruled Hayden’s objection to the inclusion of the marijuana and money found in the two houses; the court noted the testimony of Hayden’s landlord that Hayden was renting the Knollcrest house and was purchasing the house on Salt Trail Canyon Pass on a land contract, and additional evidence that he was maintaining and using both residences. The court traced the money to drug proceeds, noting in particular the testimony of Hayden’s cousin, who reported that he employed Hayden at his used car dealership for only $200 to $800 per week, and the testimony of DEA special agent, Howard Schneider, who reported that informants had identified Hayden as a multi-kilogram cocaine dealer. The court cited Schneider’s testimony that a kilogram of cocaine sells for $25,000 at the high end, and concluded that the $894,748 found in the Salt Trail Canyon Pass house represented at least 15.7 kilograms of cocaine. Using the drug equivalency table of the Sentencing Guidelines, the court calculated that Hayden was responsible for the equivalence of 3,759 kilograms of marijuana, see U.S.S.G. § 2D1.1 cmt. n. 10, yielding a guidelines range of 188 to 235 months for count one and an additional 60 months for count two. The court sentenced Hayden to the bottom of the guidelines range.
Hayden now wants his guilty plea set aside, so counsel properly considers whether he could challenge the voluntariness of his guilty plea or the adequacy of the plea colloquy. See Fed.R.CRIM.P. 11; United States v. Knox, 287 F.3d 667, 671-72 (7th Cir.2002). Counsel considers challenging the plea colloquy based on the district court’s failure to advise Hayden of the court’s authority to order restitution, or his right to present evidence at trial. *548See Fed.R.Crim.P. 11(b)(1)(E), (b)(1)(E). The • court, however, did inform Hayden that he could be subject to fines totaling .'$4,250,000, and ultimately, imposed no restitution or fine, so the court’s omission of a warning about possible restitution was harmless. See United States v. Fox, 941 F.2d 480, 484 (7th Cir.1991): The court also informed Hayden that he could compel the attendance of witnesses and testify in his own defense and that his decision not to testify or present any evidence could not be used against him at trial. His right to present evidence at trial was further covered in the written plea agreement, which he acknowledged having read and understood. Any challenge to the plea colloquy on this basis would therefore be frivolous. See Fed.R.CRim.P. 11(h); United States v. Dominguez Benitez, 542 U.S. 74, 83, 85, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004); United States v. Driver, 242 F.3d 767, 771 (7th Cir.2001).
Hayden in his Rule 51(b) response, challenges the plea colloquy, contending that the district' court incorrectly informed him of the applicable minimum sentence for his firearm- offense under § 924(c)(1). . See Fed.R.Crim.P. ll(b)(l)(I). Hayden asserts that he.is not subject to the consecutive 5-year minimum sentence as provided in § 924(c)(1)(A), relying on the Second Circuit’s interpretation of .§ 924(c)(1)(A) in United States v. Whitley, 529 F.3d 150, 152-53, 158 (2d Cir.2008). But in United States v. Easter, we expressly rejected the Second Circuit’s- interpretation of § 924(c)(1)(A). 553 F.3d 519, 524-25 (7th Cir.2009), cert. denied sub nom. McKay v. United States, — U.S.-, 130 S.Ct. 1281, — L.Ed.2d - (2010). The Supreme Court has since consolidated and granted, certiorari in two cases to resolve this eircúit split, Gould v. United States, -U.S.-, 130 S.Ct. 1283, -L.Ed.2d -(2010); Abbott v. United States, — U.S. -, 130 S.Ct. 1284, — L.Ed.2d -(2010), but we have continued to endorse Easter's reasoning. See United States v. Boyd, 608 F.3d 331, 333 (7th Cir.2010). The district court correctly recited the law of this circuit as to the minimum sentence that Hayden faced for this count.
Counsel next considers whether Hayden could challenge the district court’s denial of his motion to suppress, but correctly concludes that any challenge to the stop and search of the Grand Prix would be futile. As counsel notes, the traffic stop was supported not only by Hayden’s presence at a known drug house and evasive driving, see United States v. Fiasche, 520 F.3d 694, 695, 697-98 (7th Cir.2008); United States v. Baskin, 401 F.3d 788, 791 — 92 (7th Cir.2005), but also by Hayden’s multiple traffic violations, see Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); United States v. Kenerson, 585 F.3d 389, 392 (7th Cir.2009). The district court found that Detective Engelman was in constant communication with the officers who saw the violations and that they relayed that information to him, giving Engelman probable cause. See United States v. Harris, 585 F.3d 394, 400-01 (7th Cir.2009). Counsel cannot identify anything in the record that would lead us to disturb the district court’s findings of fact, which we would review only for clear error. See United States v. Wendt, 465 F.3d 814, 816 (7th Cir.2006).
As for the search of Hayden’s car, the district court found that Hayden’s consent was voluntary and correctly explained that a defendant’s consent is unaffected 1 by an officer’s statement that he will use a drug-sniffing canine. See United States. v. Taylor, 596 F.3d 373, 376-77 (7th Cir.2010); United States v. Robinson, 984 F.2d 911, 914 (8th Cir.1993). In his Rule 51(b) response, Hayden focuses on the marijuana found on the passenger floor and contends that Detective Engel-*549man concocted the story in order to arrest him and then search the car. He further contends that the search of the trap compartments exceeded the officers’ authority for a search incident to arrest. But Hayden points to no evidence in the record that would directly call into question En-gelman’s testimony that he found marijuana in Hayden’s car. And Hayden’s arrest for possession of the marijuana supported a search of the car for evidence relevant to that offense. See Arizona v. Gant, — U.S. —129 S.Ct. 1710, 1719, 173 L.Ed.2d 485 (2009). Moreover, the district court credited Engelman’s testimony that he smelled marijuana at the outset — testimony that also provided the officers with probable cause to search the entire car, including the trunk and .any other compartments. See United States v. Cherry, 436 F.3d 769, 772 (7th Cir.2006).
Counsel also explores but correctly rejects as frivolous a challenge to district court’s determination of relevant drug quantity. The court appropriately found that the kilogram retrieved from. Burnett was packaged similarly to the cocaine found in the Grand Prix, discovered immediately after Burnett briefly visited Hayden at a known drug house, and was' reasonably viewed as part of the same course of conduct. See U.S.S.G. § lB1.3(a)(2); United States v. Stephenson, 557 F.3d 449, 456-57 (7th Cir.2009). And the court’s findings that the drugs and money were Hayden’s and that he had earned the money through drug trafficking were well supported by the evidence. Counsel also correctly concludes that any possible double counting that resulted from the money being converted to drug quantities would be harmless. Even if the district court had calculated the drug quantity based solely on the drug proceeds, see United States v. Rivera, 6 F.3d 431, 446 (7th Cir.1993), Hayden’s base offense level for the drug trafficking offense would remain the same, see United States v. Edwards, 581 F.3d 604, 612-13 (7th Cir.2009); United States v. Crockett, 82 F.3d 722, 730 (7th Cir.1996).
Counsel also evaluates a potential challenge to Hayden’s consecutive 5-year sentence under § 924(c)(1)(A) based on the Supreme Court’s recent grant of certiorari. But counsel correctly deems any such argument precluded by Hayden’s appeal waiver, which we would enforce. See United States v. McGraw, 571 F.3d 624, 631 (7th Cir.2009); United States v. Lockwood, 416 F.3d 604, 608 (7th Cir.2005).
Finally, Hayden asserts that counsel provided ineffective assistance by negotiating the plea agreement based on what he contends is an incorrect interpretation of the mandatory minimum sentence under § 924(c)(1)(A) and by failing to raise the issue in the district court at sentencing. But Hayden’s appeal waiver bars all claims of ineffective assistance except those relating directly to the waiver or its negotiation. To the extent that Hayden’s claim falls within this exception, we would decline to address it on direct appeal because claims of ineffective assistance are better suited to a collateral action under 28 U.S.C. § 2255, so that a fuller record can be developed. See Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Harris, 394 F.3d 543, 557-58 (7th Cir.2005).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480413/ | ORDER
In a time of controversy over our immigration laws and their enforcement, Robert Boldyrew is in some respects the type of immigrant would be welcome to stay if he followed the rules. He has built a successful business from scratch. He is the sole provider for his disabled wife, his two daughters, and his elderly father. All four of these dependants are United States citizens. And other than his illegal presence in the country, he has committed no crimes. Despite these virtues, his respect for our immigration laws appears lacking, to put it mildly: he was ordered removed nineteen years ago and has remained here illegally ever since. After more than twenty years of belated attempts to settle his immigration situation, Boldyrew comes before this court for the first time on a petition for review of the Board of Immigration Appeals’ denial of his motion to reconsider its denial of his untimely motion to reopen. Because we have no basis to disturb the Board’s decision, we deny his petition.
I.
Boldyrew first came to the United States from Poland as a visitor for pleasure in 1985, when the Soviet-supported *551communist regime still clung to power. His visa expired a few months later and in 1987 he filed an unsuccessful application for asylum with the former Immigration and Naturalization Service. A year later, the INS issued an Order to Show Cause to Boldyrew, charging him with removability for remaining in the country longer than his visa permitted.
Boldyrew did not appear for his scheduled hearing before an immigration judge, but his attorney obtained a continuance. Despite notice of the rescheduled hearing from his attorney, Boldyrew did not appear at the second hearing either. Over the objection of his attorney, the immigration judge ordered Boldyrew removed in absentia. His attorney then appealed the order to the Board of Immigration Appeals, although Boldyrew now claims that he neither authorized nor knew of that appeal. The Board found that Boldyrew could not show good cause for failing to attend his removal hearing and affirmed the immigration judge’s in absentia order. Boldyrew did not seek judicial review of that decision, and his removal became final in 1991.
While his appeal with the Board was pending, Boldyrew married Beata Sroka, who was then a lawful permanent resident. His wife then filed a Petition for Alien Relative. It appears that at some point this petition was approved and by 1995 there was a visa available for Boldyrew in Warsaw. He did not return to claim the visa, however, because he believed he would have been subject to a five-year period of inadmissibility (actually, it would have been ten years) due to his removal and unlawful presence in the country.
In 2000, he retained a new attorney and in 2001 he moved to reopen his removal proceedings under section 1505(c) of the Legal Immigration Family Equity Act Amendments of 2000. He filed his motion with the immigration judge who had decided his case in 1989, who rejected the motion for lack of jurisdiction because Boldy-rew’s appeal in 1991 had transferred the case to the Board of Immigration Appeals. Boldyrew never appealed the 2001 decision or refiled with the Board — according to him, a new motion with the Board would have been untimely by the time the immigration judge rejected his first filing.
In 2008, Boldyrew was apprehended at his residence in Chicago by Immigration and Customs Enforcement agents on the outstanding warrant of removal. He was released under a supervised release program, and two weeks later he filed a motion to reopen his removal proceedings with the Board. He argued that removing him would cause extreme hardship for his family because he would be unable to provide for them. The Board denied his motion as untimely, noting that Boldyrew had provided no legal basis that would allow him to file a motion to reopen approximately seventeen years after the 90-day statutory limit. And it declined Boldy-rew’s invitation to reopen the case sua sponte. The order made no mention of the situation in which Boldyrew’s family would find itself after his removal. Instead, it focused on the long period of inaction, during which Boldyrew apparently could have obtained a visa by returning to Poland. To the Board, this demonstrated a lack of the exceptional circumstances that would warrant a sua sponte reopening.
Boldyrew did not petition for review of the Board’s denial of his motion to reopen, but did file a timely motion with the Board for reconsideration of that decision. He did not challenge the Board’s determination that his motion to reopen was untimely or provide any statutory or regulatory authority for an exception. Instead, he focused solely on the Board’s characterization of his attempts to regularize his immigration situation over the years as “inac*552tion.” The Board denied his motion to reconsider, noting that the motion to reopen had been untimely and that “[g]iven [Boldyrew’s] inaction for over 17 years, we did not err in declining to exercise our sua sponte authority to reopen.” Boldyrew then filed a timely petition for review of the Board’s denial of his motion to reconsider.
II.
We begin our analysis by clarifying precisely what we are reviewing. Boldyrew has only petitioned for review of the Board’s denial of his motion to reconsider, so only issues that he raised before the Board in that motion are properly before us. Tittjung v. Reno, 199 F.3d 393, 396 (7th Cir.1999). A motion for reconsideration asks the Board to find an earlier decision defective in light of additional legal arguments, a change in law, or an argument that was overlooked. Patel v. Gonzales, 442 F.3d 1011, 1015 (7th Cir.2006). And we review the Board’s disposition of such a motion only for an abuse of discretion. Id. at 1016.
The Board discussed two issues in its motion to reconsider: the timeliness of the motion to reopen and its decision not to reopen the case sua sponte. Regarding the first, the Board stated that Boldyrew did not provide any statutory or regulatory basis for reopening his proceedings despite the untimeliness of his motion. Boldyrew now argues that the fact that he did not have notice of the consequences of his failure to appear at his initial removal proceedings provides such a basis. But because Boldyrew did not raise this argument before the Board, it is not properly before us now. Tittjung, 199 F.3d at 396 (“This Court’s review is limited to those issues that [petitioner] presented to the [Board] in his motion for reconsideration.”).1
Boldyrew argues alternatively that the Board should have reopened his case sua sponte pursuant to 8 C.F.R. § 1003.2(a). But we have held that we do not have jurisdiction to review the Board’s failure to reopen a case sua sponte, so we cannot review its reconsideration of such a decision either. Johnson v. Gonzales, 478 F.3d 795, 799 (7th Cir.2007); see also Calle-Vujiles v. Ashcroft, 320 F.3d 472 (3d Cir.2003) (holding that there is no jurisdiction to review sua sponte failures to reopen under the doctrine of Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), that courts may not review matters where the relevant “statute is drawn in such a way that a court would have no meaningful standard of review against which to judge the agency’s exercise of discretion”).
The remainder of Boldyrew’s arguments challenge aspects of various earlier proceedings that are not properly before us on this petition for review, so we lack any basis for judicial relief. We realize, of course, that based on Boldyrew’s portrayal of the facts, his departure would create significant hardship for those who depend on him for support and care. According to Boldyrew, his father is sick and requires his support. His wife is disabled and cannot support herself or them teenage daughters, who have no connections to Poland. There may be measures that the Attorney General could take, either to adjust Boldyrew’s status before he leaves the *553country, to delay his removal,. or to waive his inadmissibility once he is back in Poland. And although we have no authority to influence the discretionary decisions of the Attorney General, we respectfully suggest that he consider the undeniably compelling circumstances in this case and the hardship that will fall on Boldyrew’s innocent family members, all of whom are United States citizens.
III.
For the reasons stated above, the petition for review is hereby DENIED in part and DISMISSED in part for lack of jurisdiction.
. Our circuit precedent is divided on whether this is a jurisdictional issue or- merely procedural. Compare Awad v. Ashcroft, 328 F.3d 336, 340 (7th Cir.2003) (jurisdictional) with Korsunskiy v. Gonzales, 461 F.3d 847, 849 (7th Cir.2006) (not jurisdictional). We need not resolve this conflict because it does not matter, to the result in this case: the Attorney General has stood on its rights and pointed out that Boldyrew did not raise his arguments below. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480414/ | ORDER
Clay E. Russell filed a civil rights complaint pursuant to 42 U.S.C. § 1983, alleging that two officers of the Milwaukee Police Department, Dale Devereaux and *558Andrew Deptula, violated his Fourth Amendment rights when they arrested him in connection with a burglary and searched his vehicle on June 18, 2006. Russell was taken to the police station for questioning and released that same day without being charged. The parties filed cross-motions for summary judgment and the district court granted summary judgment in favor of the defendant police officers. The judge determined that the defendants had probable cause to arrest Russell based on the inculpatory statement of a known thief and Russell’s co-conspirator, and thus were entitled to qualified immunity from Russell’s suit. Plaintiff-appellant Russell appeals. We affirm the trial judge’s grant of summary judgment.
Prior to defendants’ search of Russell’s vehicle on June 18, 2006, defendants had information that Russell had been involved in a burglary and in the sale of stolen property. Specifically, on August 11, 2005, after receiving information regarding Russell’s involvement in a May 9, 2005 burglary from Darnell Bankhead, a known thief and Russell’s co-conspirator, the Milwaukee Police Department created a police department memorandum entitled Milwaukee Police Department Investigative Alert (Not a Basis For Arrest)1 which identified Russell as a suspect in the May 2005 burglary. The officer who prepared the memo cautioned that, to date, he had not confirmed the information from Bankhead connecting Russell to the May 2005 burglary. On August 15, 2005, after receiving additional information from Bankhead concerning property he and Russell had stolen, defendants went to the home of Roy Berry, a purchaser of the property Bank-head and Russell stole. Berry consented to a search of his home and identified for the police the property that Bankhead and Russell sold to him. The police recovered the stolen property from Berry and Berry related that Bankhead and Russell brought him stolen property almost every day between April and June of 2005. Armed with this information, on June 18, 2006, while on patrol, Devereaux and Dep-tula observed Russell sitting in his car, confronted him, placed him under arrest at the scene, and searched his vehicle without a warrant. The search uncovered drug paraphernalia and power tools matching the description of tools a confidential informant told them Russell had been attempting to trade for drugs or money.
Officers Devereaux and Deptula also searched Russell’s vehicle on July 27, 2006, after an informant told them that Russell had again been attempting to trade stolen property for drugs. When the officers approached Russell sleeping in his car, they observed bolt cutters, which Russell admitted were not his. According to the officers, Russell consented to the search of his vehicle and the bold cutters were confiscated. Russell alleges that the July 27, 2006 search was also illegal but failed to explain why that search was illegal. Because he failed to develop any legal argument to support his claim that the July 27, 2006 search of his vehicle was illegal, that claim is waived. See Fredricksen v. United Parcel Serv., Co., 581 F.3d 516, 523-24 (7th Cir.2009). Russell’s appeal briefs also make reference to Detective Donald Laura, but presented no information to support a claim concerning Det. Laura and the record contains no evidence that Det. Laura was involved in any search of Russell’s vehicle. Thus, any claims *559against Det. Laura concerning the alleged illegal search of Russell’s vehicle are waived.
In granting summary judgment in favor of the defendant police officers, the trial court concluded that it was reasonable for the officers to believe their arrest and search of Russell’s vehicle on June 18, 2006 was lawful, and thus they were entitled to qualified immunity. In reaching this conclusion, the court noted that, under New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), and Thornton v. United States, 541 U.S. 615, 617, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004), the defendants’ warrantless search of Russell’s car shortly after he was in custody was constitutional so long as his arrest was lawful. The district judge further explained that recently the United States Supreme Court held in Arizona v. Gant, — U.S.-, 129 S.Ct. 1710, 1714, 173 L.Ed.2d 485 (2009) that once an arres-tee is in custody, a warrantless search of his recently occupied car is permitted “when it is reasonable to believe that evidence of the offense of arrest might be found” inside the vehicle. The judge noted that because “a broad reading” of Belton and Thornton had been “widely accepted” in 2006, the time defendants searched Russell’s vehicle, the defendants were legally permitted to search Russell’s vehicle so long as they had probable cause to arrest him. See Gant, 129 S.Ct. at 1722 n. 11. The district judge ruled that Bankhead’s inculpatory statement made to the police and included in the police department memo provided the officers with probable cause to arrest Russell. Thus, the trial court concluded that the defendants’s search of Russell's vehicle was lawful and they are entitled to qualified immunity.
On appeal, Russell argues that the trial court erred when concluding that Bank-head’s inculpatory statement concerning Russell’s involvement in a burglary given to the police provided the officers with probable cause to arrest him and thus they should not be granted qualified immunity. Specifically, Russell notes that almost one year had passed since Bankhead leveled his accusations, that over one year had passed since the burglary itself, and that the police department memorandum, without more, was not supposed to be the basis of an arrest. He insists that without additional information from further investigation or fresh corroboration, no reasonable officer would have thought that Bank-head’s “stale” charges constituted probable cause for his arrest.
When reviewing the grant of summary judgment in favor of the defendants-appel-lees, we construe the evidence in the light most favorable to the plaintiff-appellant, Russell. See Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir.2010). We review de novo the question of qualified immunity; as the parties have framed it, that question is whether the officers violated Russell’s “clearly established” right not to be arrested without probable cause. See Sandra T.E. v. Grindle, 599 F.3d 583, 587 (7th Cir.2010).
Qualified immunity “protects police officers ‘who act in ways they reasonably believe to be lawful.’ ” Wheeler v. Lawson, 539 F.3d 629, 639 (7th Cir.2008) (quoting Anderson v. Creighton, 483 U.S. 635, 638-39, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). It also “provides ‘ample room for mistaken judgment.’ ” Id. (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)).
At the time of the incident in question, June 18, 2006, the law was that when a police officer makes a lawful arrest, “the Fourth Amendment allows the officer to search the passenger compartment of [a] vehicle as a contemporaneous incident of arrest.” Thornton, 541 U.S. at 617, 124 S.Ct. 2127; see also Belton, 453 U.S. at *560460, 101 S.Ct. 2860. The United States Supreme Court recently limited the scope of Belton to instances “when it- is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.” Gant, 129 S.Ct. at 1714.' The Supreme Court further explained in Gant that since Thornton and Belton had been widely accepted, qualified immunity shields “officers from liability for searches conducted in reasonable reliance” on the understanding that officers are legally permitted to search a vehicle subsequent to a lawful arrest. Id. at 1723 n. 11.
To establish that an arrest was unlawful in violation of the Fourth Amendment, a plaintiff must prove he/she was arrested without probable cause. See Williams v. Rodriguez, 509 F.3d 392, 398 (7th Cir. 2007). An officer has probable cause to make an arrest “if at the time of the arrest, the officers possess knowledge from reasonably trustworthy information that is sufficient to warrant a prudent person in believing that a suspect has committed, or is committing, a crime.” United States v. Brown, 366 F.3d 456, 458 (7th Cir.2004). It “does not require evidence sufficient to support a conviction, nor even evidence demonstrating that it is more likely than not that the suspect committed a crime.” Wheeler, 539 F.3d at 634 (quoting United States v. Sawyer, 224 F.3d 675, 679 (7th Cir.2000)).
Based on the record before us, it is clear that a reasonable officer would have believed that probable cause supported Russell’s arrest in June of 2006. The police department memorandum dated August 11, 2005 contained a statement from Russell’s co-conspirator, Bankhead, implicating Russell in a May 2005 burglary. The officers corroborated Bankhead’s statement regarding Russell’s involvement in the May 2005 burglary through their conversation with Berry and their search of Berry’s home. Particularly, Berry confirmed that in mid-2005 Russell and Bankhead were working as a team in jointly committing burglary. Furthermore, the officers’ search of Berry’s home turned up stolen property; property that Berry stated he had purchased from Bankhead and Russell. Finally, a confidential informant told the officers that Russell had been attempting to trade power tools for drug money.
Russell argues that the police department memorandum alone could not be the basis of the arrest. However, the officer’s further investigation, namely Berry’s statement that Bankhead and Russell brought him stolen property every day from April to June of 2005 and their search of his home which uncovered stolen property, shows that the police department memorandum alone was not the basis for the arrest. Russell also contends that the probable cause became stale because nearly one year had passed since the defendants’ investigation. But probable cause to make an arrest grows “stale only if it emerges that it was based on since discredited information.” United States v. Bizier, 111 F.3d 214, 219 (1st Cir.1997). There is no evidence in the record and Russell failed to produced any evidence that discredits the information the officers received during their investigation. Thus, we hold that the officers had probable cause to arrest Russell at the time of his apprehension and the district court appropriately granted defendants’ motion for summary judgment.
AFFIRMED.
. A Milwaukee Police Department Investigative Alert is a Milwaukee Police Department memorandum which is filled out by an officer and provides information concerning a crime and a description of the suspect. The memo is for internal use within the police department. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480415/ | ORDER
Police obtained a warrant to search Om-arr Lowe’s home for evidence of cocaine trafficking. During their search officers found cocaine, marijuana, crystal methamphetamine, and assorted drug-trafficking paraphernalia, as well as five guns, body armor, and $22,000 in cash. Lowe moved to suppress the evidence, arguing that the affidavit in support of the search warrant lacked probable cause. The district court denied his motion. A jury later found Lowe guilty of conspiring to distribute cocaine, possessing and distributing cocaine, and possessing firearms in furtherance of drug trafficking. See 21 U.S.C. §§ 846, 841(a)(l);18 U.S.C. § 924(c)(1)(A). The-district court sentenced him to a total of 120 months’ imprisonment for the drug counts and 60 months, consecutive, for the gun count. On appeal, Lowe' challenges only the denial of his motion to suppress. We affirm.
On November 3, 2008, Officer Gary Lewis of the Appleton, Wisconsin, police department obtained a search warrant for Lowe’s house. In requesting the warrant, Lewis submitted a five-page affidavit to a staté judge, asserting that he had probable cause to believe Lowe was trafficking cocaine from his home in Appleton. Lewis detailed a controlled drug buy conducted that same day, in which an unnamed informant had purchased 14.3 grams of cocaine from Lowe’s brother, Doby Lowe. In the course of the transaction, Doby had stopped at Lowe’s house before giving the *562informant the drugs. In the affidavit, Lewis recounted that the informant met with Doby in a white Mitsubishi Montero in front of Dob/s house in Grand Chute, Wisconsin, and gave Doby $750 in marked currency to purchase cocaine and also cover a $300 drug debt. Lewis had Doby and the informant under surveillance when the buy money was handed over to Doby. But Doby did not give the informant the cocaine, and, instead, he told the informant to return in 90 minutes. Lewis then followed Doby as he drove to Lowe’s house. Approximately 30 minutes later Doby exited Lowe’s house. Investigator Feucht, also working the investigation, advised Lewis that as Doby departed he called the informant, said that everything was “good,” and instructed the informant to meet him back at Dobys house. Moments later, Doby met the informant and handed over the cocaine. In the affidavit for the warrant, Lewis also asserted that the informant had told Feucht that Omarr Lowe was Doby’s source for cocaine. And, Lewis continued, the informant’s statements had “proven reliable in the past.” Although the affidavit describes events occurring on November 3, 2008, and was signed and executed on the same date, the typed jurat erroneously identifies August 3, 2008, as the date on which the affidavit was signed and sworn.
Before trial Lowe moved to suppress all physical evidence recovered from his house on the ground that Officer Lewis’s affidavit lacked sufficient information to establish probable cause for the search. Lowe argued, first, that the incorrect date in the jurat rendered the affidavit insufficient on its face and, second, that the affidavit lacked sufficient information to find the informant credible and, thus, lacked sufficient facts pointing to Lowe as the supplier. The trial judge referred the motion to a magistrate judge who concluded that, although “far from a model of clarity, chronological and otherwise,” the affidavit provided sufficient information from which the issuing judge could find a fair probability that evidence of a crime would be found at Lowe’s house. Lowe objected, and the district court adopted the magistrate judge’s recommendation, denying the motion to suppress. First, the district court concluded that the mistaken date in the jurat was a scrivener’s error and was immaterial to the validity of the warrant. Next, the court reasoned that the majority of the information in the affidavit was based not on the informant’s statements but the observations of the officers and supported a reasonable inference that evidence of drug trafficking would be found in Lowe’s residence. The court further held that, even if the affidavit was deficient, the officers relied on the warrant in good faith.
We review a district court’s determination that a warrant is supported by probable cause de novo but give great deference to the issuing judge’s conclusion. United States v. McIntire, 516 F.3d 576, 578 (7th Cir.2008). Here, the affidavit was the only evidence provided to the issuing judge in support of the search warrant, so the affidavit was required to set forth sufficient evidence to convince a reasonable person— based on the totality of the circumstances — that a search would produce evidence of a crime. See Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); United States v. Bell, 585 F.3d 1045, 1049 (7th Cir.2009); United States v. Peck, 317 F.3d 754, 755-56 (7th Cir.2003).
Lowe asserts that the affidavit is just “bare bones” and does not establish probable cause because, he contends, much of the information is provided by an informant of unknown reliability. As Lowe notes, Officer Lewis’s affidavit states that the informant’s prior statements were reliable, but does not offer further explanation or disclose the details underlying this assertion. We have repeatedly held that *563wholly conclusory assertions of reliability are not entitled to any weight. United States v. Dismuke, 593 F.3d 582, 587 (7th Cir.2010); United States v. Koerth, 312 F.3d 862, 867 (7th Cir.2002). Thus, the informant’s statement that Lowe was Dobys supplier is insufficient, on its own, to establish probable cause. See Dismuke, 593 F.3d at 587-88. Yet even when an affiant has not sufficiently explained his belief that an informant is reliable, the issuing court may still find probable cause if reliability can be inferred from the totality of the circumstances. Relevant factors include (1) the extent of police corroboration of the informant’s information, (2) whether the informant’s information was based on personal observations, (3) the amount of detail provided by the informant, (4) the amount of time between the events reported by the informant and the warrant application, and (5) whether the informant personally appeared before the issuing judge to present the affidavit or testimony. Id. at 587; United States v. Olson, 408 F.3d 366, 370 (7th Cir.2005).
Here, in addition to the informant’s statement identifying Lowe as his supplier, the affidavit details a controlled drug buy corroborated by police observation. Lowe’s brother accepted the informant’s marked bills but gave no cocaine in exchange. Immediately afterward he visited Lowe’s house, then called the informant to say “it’s all good,” and then five minutes later delivered the cocaine to the informant. Although the informant did not appear before the issuing judge, little time had passed between the transaction and the immediate issuance of the warrant that same day. The details of that transaction provided by the informant and corroborated by the police support a reasonable inference that Doby retrieved the cocaine from Lowe’s house.
Lowe takes issue with the use of the transaction as support for probable cause because, as hé reads the affidavit, it is unclear whether many of the details come from police corroboration or the informant. Lowe notes that the affidavit is silent as to whether the informant was searched for drugs before the controlled drug buy or whether audio surveillance was used. But based on the wording of the affidavit, the issuing judge could reasonably infer that nearly all of the details were independently observed or heard by the police during their surveillance of the controlled buy. Before recounting the details of the sale, the officer states that the affidavit is based upon his personal observations as well as those of other officers. The transaction is explained in bullet points, each beginning with the phrase “I know.” Although there are few details about the methods of surveillance or the procedures associated with a controlled drug buy, the officer does note at points that he personally observed the informant’s initial meeting with Doby, Doby’s trip to Lowe’s house, and the completion of the sale.
To the extent that the details of the transaction were provided by the informant, Lowe contends that those details must be viewed as unreliable because the officer did not provide sufficient explanation of the informant’s reliability. But Lowe misses the point: the court evaluating the warrant application considers the totality of the circumstances, and the more details an informant provides — even an informant of unknown reliability — the greater the issuing judge’s confidence in the informant’s reliability. See Dismuke, 593 F.3d at 587 (explaining that details provide “indicia of reliability”); United States v. Sims, 551 F.3d 640, 644-45 (7th Cir.2008) (crediting statements of informant based in part on level of detail provided); United States v. Taylor, 471 F.3d 832, 839 (7th Cir.2006) (same).
Moreover, the informant’s description of the transaction and Lowe’s involvement *564was largely corroborated by police surveillance. Contrary to Lowe’s assertion, the affidavit is unlike that in Bell, where we explained that a conclusory statement from an informant of unknown reliability cannot be bolstered with the conclusory statements of other unreliable informants. See Bell, 585 F.3d at 1050-51. In Bell, we concluded that probable cause was lacking because the affidavit relied almost exclusively on accounts from informants of unknown reliability. Id. at 1049-50. We similarly found no probable cause in Peck, where the affidavit related statements from an unreliable informant but failed to disclose any police corroboration save for a check of the defendant’s criminal record. Peck, 317 F.3d at 756-57. But here the informant’s details of the transaction and his assertion that Lowe was Dob/s supplier were independently supported by police surveillance of the controlled buy, which led directly to Lowe’s house.
Lowe argues that additional investigative efforts could have been used to corroborate the informant’s accusations against him, but we regularly reject such arguments because what could have been done “ ‘does not in any way detract from what was done.’ ” Sims, 551 F.3d at 644 (quoting United States v. Jones, 208 F.3d 603, 607 (7th Cir.2000)). And although Lowe cites Owens v. United States, 387 F.3d 607, 608 (7th Cir.2004), to argue that the affidavit was required to include specific information about the amount of cocaine in Lowe’s house in order to support an inference that the sale was not just an isolated incident, the affidavit in Owens was very different. We rejected the bare-bones affidavit in Owens because it revealed only that an informant had bought “a quantity of crack” from the defendant’s house three months earlier. Owens, 387 F.3d at 608. Unlike the stale and vague information provided in Owens, the affidavit here describes very recent events, explains that the informant had a prior drug debt with Doby (indicating an ongoing sales relationship), and recounts that Doby drove directly to Lowe’s house in between accepting payment for the cocaine and making the delivery. The parties disagree as to whether the 14.3 grams of cocaine received by the informant is a user-quantity, but, regardless, the level of detail and corroboration provided in the affidavit was sufficient to infer that the sale was not “a single, isolated sale ... to a desperate acquaintance,” id., and that evidence of cocaine dealing would be found in the house.
Finally, because we conclude that the search warrant was supported by probable cause, we need not address the government’s alternative argument that, even if the affidavit was deficient, the evidence seized from Lowe’s home would have been admissible under the good-faith exception to the exclusionary rule. See United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); United States v. Mitten, 592 F.3d 767, 770 (7th Cir.2010); United States v. Farmer, 543 F.3d 363, 378 (7th Cir.2008).
Accordingly, we AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480429/ | OPINION
PER CURIAM.
Antonius Targono, an Indonesian citizen of Chinese descent, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision upholding the Immigration Judge’s (“IJ”) removal order and denying Targono’s application for withholding of removal. For the following reasons, we will deny the petition for review.
I
Targono entered the United States in 2001 and remained beyond the authorized period. Before the IJ, he conceded re-movability. Later, in 2004, Targono filed an application for asylum, withholding of removal, and CAT protection.
*183In support of his application, Targono testified that, between the ages of 7 and 15, he was repeatedly insulted by Indonesian children who shouted “Chinese, Chinese,” at him and told him he did not deserve to be in Indonesia. In addition, approximately three times per week, he was stopped on the way to school by neighborhood children and young adults who would demand money from him because they saw he was Chinese and believed he was wealthy. If he did not have money, they would hit him, but not enough to cause injury. Targono testified that the worst thing to happen to him was the taunting by his classmates. He also testified that he fears returning to Indonesia because of the riots that occurred in May 1998 and because churches are being destroyed.
The IJ denied Targono’s application, reasoning that his asylum application was untimely and that he failed to demonstrate past persecution or a clear probability of future persecution. The BIA upheld the Id’s decision, but remanded for consideration of Targono’s CAT claim, which Tar-gono ultimately withdrew. After further proceedings, Targono filed a timely petition for review.
II
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). 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 deferred to or adopted the IJ’s reasoning. See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). We review the Agency’s factual determinations for substantial evidence, and will uphold such determinations unless any reasonable adjudicator would be compelled to reach a contrary conclusion. See Fiadjoe v. Att’y Gen., 411 F.3d 135, 153 (3d Cir.2005).
“The threshold for establishing eligibility for withholding of removal is higher than that for establishing entitlement to asylum and requires the alien to demonstrate a ‘clear probability’ that, upon removal to the country of origin, his or her ‘life or freedom would be threatened on account of one of the statutorily enumerated factors.’ ” Obale v. Att’y Gen., 453 F.3d 151, 161 (3d Cir.2006) (quoting Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir.1998)). The clear probability standard is met if an applicant shows that it is more likely than not that he will suffer persecution. See Miah v. Ashcroft, 346 F.3d 434, 439 (3d Cir.2003). An applicant may meet this standard by demonstrating past persecution, which creates a rebuttable presumption of future persecution, or by demonstrating that a future threat to his life or freedom is likely, either because he will be singled out for persecution or because he is a member of a group subject to a pattern or practice of persecution. See 8 C.F.R. § 208.16(b). Persecution includes “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993). However, it “does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.” Id.
Targono presents two arguments in his petition for review. First, he argues that the BIA erred in concluding that he failed to demonstrate past persecution. In denying relief, the BIA reasoned that the incidents Targono endured, viewed cumulatively, did not rise to the level of persecution. We agree. Although unfortunate, the taunting, stealing, and hitting Targono faced were not so severe that they consti*184tuted a threat to his life or freedom. See id.
Second, Targono argues that the BIA failed to consider whether a pattern or practice of persecution against Chinese Christians exists in Indonesia. Though the IJ expressly held that the background evidence Targono submitted failed to demonstrate a pattern or practice of persecution against Chinese Christians in Indonesia, the BIA did not. Rather, the BIA stated generally that Targono “did not show a clear probability of persecution upon his return [to Indonesia],” AR 145, and expressly agreed with the IJ’s holding that Targono failed to demonstrate that he would be singled out for persecution. Targono contends that the Board’s omission requires a remand for further consideration. We disagree. “The Board is not required to write an exegesis on every contention, but only to show that it has reviewed the record and grasped the [alien’s] claims.” Sevoian v. Ashcroft, 290 F.3d 166, 178 (3d Cir.2002) (internal citations and quotation marks omitted). In declining to expressly discuss Targono’s “pattern or practice” claim, the Board implicitly adopted the IJ’s reasoning. To the extent that Targono challenges the Agency's determination that the background evidence he provided did not show a pattern or practice of persecution, we agree with the Government that such a claim lacks merit. We held in Sioe Tjen Wong v. Att’y Gen., 539 F.3d 225, 233-34 (3d Cir.2008), that the same reports Targono provided were insufficient to demonstrate such a pattern or practice.
Accordingly, we will deny the petition for review. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480430/ | OPINION
PER CURIAM.
Sean Prince, a native of Guyana, petitions for review of two decisions of the Board of Immigration Appeals (“BIA”). One decision upheld the denial of Prince’s cancellation of removal application and ordered him removed from the United States, and the other decision denied Prince’s motion for reconsideration. Because we conclude that neither petition for review has merit, they will be denied.
I.
Prince entered the United States on May 21,1983, and was admitted as a lawful permanent resident. Since that time, Prince has had numerous encounters with the criminal justice system. Following Prince’s 2002 conviction for second degree menacing and his 2003 conviction for assault (both in New York), the Government issued Prince a notice to appear charging him with removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii) (“Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal *191misconduct ... is deportable.”).1 To block his removal, Prince applied for cancellation of removal pursuant to 8 U.S.C. § 1229b(a). Question 49 on the form application asked Prince to detail his full criminal history, including the dates and punishments for any and every conviction. (AR 567.)2 In response to this question, Prince attached a document indicating that he had five criminal convictions. (AR 570.)
On January 15, 2009, a merits hearing was held on Prince’s cancellation of removal application. At the hearing, the Government produced an FBI Identification Record report (“the FBI rap sheet”) indicating that Prince actually had seventeen arrests resulting in thirteen criminal convictions in New York and California.3 Using information from the FBI rap sheet, the Immigration Judge (IJ) determined that Prince was statutorily ineligible for cancellation of removal because his convictions in 1988 for an assault and in 1989 for drug possession prevented him from satisfying the continuous residency requirement. See 8 U.S.C. § 1229b(a)(2) (alien must have “resided in the United States continuously for 7 years after having been admitted”); 8 U.S.C. § 1229b(d)(l) (period of continuous residence ends when alien commits a controlled substance offense or a crime involving moral turpitude). The IJ stated that Prince’s “foremost problem ... is his 1989 conviction,” but that Prince had also failed to demonstrate that his 1988 assault conviction did not qualify as one for a crime involving moral turpitude.
The BIA dismissed Prince’s appeal, concluding that he failed to carry his burden of showing eligibility for cancellation of removal. The BIA determined that the IJ did not clearly err in finding that Prince’s 1989 conviction constituted one involving a controlled substance. In addition, the BIA rejected Prince’s claim that his due process rights were violated when the IJ allowed the Government to introduce the FBI rap sheet at the merits hearing. The BIA reasoned as follows:
It is the respondent’s burden to affirmatively establish his eligibility for relief. Therefore, as to these convictions [from the FBI rap sheet], he was required to disclose them and to establish that they did not present a statutory basis for denying relief. The respondent did neither of these. Moreover, the existence of the 1989 controlled substance conviction bars him from relief, thereby rendering the respondent unable to show prejudice even if we presume that a procedural due process violation occurred.
(AR 17) (internal citations omitted).
Prince filed his first petition for review (No. 09-2940) with this Court, as well a motion for reconsideration with the BIA. The BIA denied the motion, and Prince filed his second petition for review (No. 09-3974). The two cases were consolidated.
II.
We lack jurisdiction to review final orders of removal for aliens, like Prince, who are removable for having committed a criminal offense described in 8 U.S.C. *192§ 1252(a)(2)(C). However, we retain jurisdiction to consider the constitutional claims and questions of law raised in Prince’s brief. See 8 U.S.C. § 1252(a)(2)(D); see also Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir.2005). We review those claims and questions de novo. See Mudric v. Att’y Gen., 469 F.3d 94, 97 (3d Cir.2006).
III.
We first consider Prince’s claim that the IJ and BIA erred as a matter of law in concluding that he failed to satisfy the cancellation of removal statute’s seven-year continuous residence requirement because pre-IIRIRA4 criminal convictions should not be considered in determining the applicability of 8 U.S.C. § 1229b(d)(l). This is essentially a claim that IIRIRA’s amendments to the immigration statute were given impermissible retroactive effect, and we lack jurisdiction here to review its merit because Prince did not press it before the BIA on direct appeal. See Hoxha v. Holder, 559 F.3d 157, 159, 159 n. 3 (3d Cir.2009).5 While Prince raised the claim in his motion for reconsideration, the BIA rejected it for technical reasons, see In re O-S-G-, 24 I. & N. Dec. 56, 58 (BIA 2006) (“A motion to reconsider based on a legal argument that could have been raised earlier in the proceedings will be denied.”), and did not reach its merits. Cf. Lopez-Dubon v. Holder, 609 F.3d 642, 644 (5th Cir.2010) (claim is exhausted “when the BIA chooses to address an issue on the merits despite potential defects in its posture before the BIA.”).
Prince next claims that his due process rights were violated when the IJ accepted the FBI rap sheet into evidence and then used information from that document to find Prince statutorily ineligible for cancellation of removal. Prince cries foul because he “was not given an opportunity to challenge the government’s evidence regarding a criminal conviction presented for the first time at the individual hearing where the conviction in question was an old conviction that [he] did not remember having committed.” (Pet. Br. at 18.)
“Aliens in removal proceedings are entitled to Fifth Amendment Due Process protection, which guarantees them a fundamentally fan* removal hearing.” Leslie v. Att’y Gen., 611 F.3d 171, 181 (3d Cir.2010). There are three pillars of a fair removal proceeding: (1) fact-finding by the IJ based on the record before the court; (2) the opportunity to raise claims and make supporting arguments; and (3) an individualized determination of those claims. See Chong v. INS, 264 F.3d 378, 386 (3d Cir.2001). None of these pillars was missing from Prince’s removal proceeding before the IJ. In its brief, the Government points out that Prince was in fact given an opportunity to challenge the information contained in the FBI rap sheet and to explain the related deficiencies in his cancellation of removal application. We agree with the Government’s characterization of the merits hearing, and conclude that Prince has not demonstrated a violation of his due process rights with respect to introduction of the FBI rap *193sheet.6 Additionally, Prince’s failure to argue that he ivas not convicted of a controlled substance offense in 1989 negates his ability to make the required showing of substantial prejudice resulting from the purported due process violation. See Singh v. Gonzales, 432 F.3d 533, 541 (3d Cir.2006).
Lastly, Prince claims that the BIA erred as a matter of law in denying his motion for reconsideration “due to its determination that he had failed to cite legal authority in support of his arguments.” (Pet. Br. at 20.) This claim lacks merit.7 The BIA did not deny Prince’s motion simply because he failed to cite legal authority, but instead because the authority Prince cited did not “persuasively demonstrate! ] an error of fact or law in our prior decision.” (AR 17.) And, as already mentioned, the BIA rejected his IIRIRA retro-activity claim on technical grounds.
Accordingly, because they lack merit, we will deny Prince’s petitions for review. .
. The Government added several removal charges subsequent to issuance of the notice to appear.
. We refer here, and throughout the opinion, to the administrative record filed in case No. 09-2940.
.The report did not list Prince’s arrests and convictions in New Jersey. (AR 307.) However, Prince’s trial counsel did inform the IJ before the start of the hearing that Prince "had a conviction in Montclair, New Jersey for terroristic threats back in January of 2006.” (AR 181.)
. The Immigration Reform and Immigrant Responsibility Act of 1996, 110 Stat. 3009-546.
. Relatedly, Prince argues that he did raise this claim on direct appeal to the BIA, and that the BIA denied him due process in failing to consider it. Prince does not provide a citation to the record in support of his argument, and we do not find it to have been presented in his brief filed with the BIA (AR 24-29), or even in his notice of appeal. (AR 60-62.)
. We emphasize that it was Prince’s burden, not the Government’s, to establish eligibility for discretionary cancellation of removal. See Jean-Louis v. Att’y Gen., 582 F.3d 462, 464 n. 2 (3d Cir.2009) (citing 8 U.S.C. § 1229a(c)(4)(A)(i)). To that end, Prince's cancellation of removal application required him to detail his entire criminal history. For whatever reason, he did not. We are loath to find a due process violation where the Government’s belated production of criminal history evidence is apparently due in no small part to the alien's gross under-reporting of that information in his application for discretionary relief.
. Because Prince claims only that the BIA applied the law incorrectly, we reject the Government's contention that lie is instead challenging the discretionary aspect of the BIA's denial of the motion for reconsideration, an aspect that we would lack jurisdiction to review. See Cruz v. Att’y Gen., 452 F.3d 240, 246-47 (3d Cir.2006). We thus have no occasion to assess the impact, if any, of Kucana v. Holder, - U.S. -, 130 S.Ct. 827, - L.Ed.2d-(2010), on our decision in Cruz. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480431/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Judy Harrison appeals the district court’s order dismissing her 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C. § 1915(e)(2)(B) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Harrison v. Central Intelligence Agency, No. 3:10-ev-00163-JRS (E.D.Va. Apr. 2, 2010). We deny Harrison’s motion for 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/8480416/ | PER CURIAM.
After Andrew Schrock pleaded guilty to making a threat involving fire and explosives, in violation of 18 U.S.C. § 844(e), the district court1 varied upward from the recommended Guidelines range and sentenced him to 60 months in prison and 3 years of supervised release. This appeal followed, in which counsel has moved to withdraw and has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing that the sentence is unreasonable. For the following reasons, we affirm.
We review Schrock’s sentence under an abuse-of-discretion standard, first ensuring that the district court committed no significant procedural error, and then considering the substantive reasonableness of the sentence under the totality of the circumstances. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir.2009) (en banc) (listing factors that constitute abuse of discretion). Counsel does not appear to be arguing that there was procedural error, and in any event, we find none. We also conclude the sentence was not substantively unreasonable given the district court’s careful and proper consideration of multiple 18 U.S.C. § 3553(a) sentencing factors that the court believed warranted a variance in this case, including Schrock’s history and characteristics, the nature and circumstances of his offense, and his danger to the community. See 18 U.S.C. § 3553(a)(1), (2)(A)-(D) (sentencing factors include need to reflect seriousness of offense and protect public from further crimes by defendant, nature and circumstances of offense, history and characteristics of defendant, affording adequate deterrence, and need to provide defendant with treatment); Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) (reviewing court must give due deference to sentencing court’s decision that § 3553(a) factors justify variance); cf. United States v. Braggs, 511 F.3d 808, 812-13 (8th Cir.2008) (affirming variance ' from Guidelines range of 15-21 months to 48 months in prison where court properly considered § 3553(a) factors,' particularly need to promote respect for law, provide just punishment, afford adequate deterrence, and protect public).
Finally, having reviewed the record independently under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we have found no nonfrivolous issues. Accordingly, we grant counsel’s motion to withdraw, and we affirm the district court’s judgment.
. The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480417/ | MEMORANDUM **
Jose Gonzalo Guevara-Sorto appeals from his jury-trial conviction and 96-*650month sentence for illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a).
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Guevara-Sorto’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. The appellant has submitted a pro se supplemental brief.
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.
The appellant’s motion to file the late supplemental brief is GRANTED. 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/8480419/ | MEMORANDUM **
Yongze Li, a native and citizen of China, petitions for review of the Board of Immi*726gration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Guo v. Ashcroft, 361 F.3d 1194, 1199 (9th Cir.2004), and we grant the petition for review, and remand.
Substantial evidence does not support the BIA’s adverse credibility determination because the perceived inconsistencies identified by the BIA regarding whether Li removed his clothing during detention, whether he was paid wages after June 2000, and whether he knew his port of arrival in the United States are minor and do not got to the heart of his claim. See id. at 1201. Furthermore, Li’s omission in his asylum application of the incident of being doused with water in his cell, when his application and testimony included being beaten and imprisoned for three weeks, does not support the BIA’s determination that he was not credible. See Bandari v. INS, 227 F.3d 1160, 1167 (9th Cir.2000) (“the mere omission of details is insufficient to uphold an adverse credibility finding”). Finally, the BIA’s conclusion that Li could not remove his own clothes if he had been brutally beaten was based on impermissible speculation. See Shah v. INS, 220 F.3d 1062, 1071 (9th Cir.2000) (“speculation and conjecture cannot form the basis of an adverse credibility finding”).
To the extent the BIA relied on the remainder of the IJ’s adverse credibility findings, those findings are also not supported by substantial evidence because they are based on either minor inconsistencies or impermissible speculation. See Li v. Holder, 559 F.3d 1096, 1102-03 (9th Cir.2009).
Accordingly, we grant the petition for review, and remand for the agency to consider Li’s claims for relief, taking his testimony as true. See Soto-Olarte v. Holder, 555 F.3d 1089, 1093-96 (9th Cir.2009); see also INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).
PETITION FOR REVIEW GRANTED; REMANDED.
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/8480420/ | MEMORANDUM **
In these consolidated petitions for review, Maria Valdovinos Quiroz and Ana Elia Valdovinos Quiroz, mother and daughter and natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s (“IJ”) decision denying their applications for cancellation of removal, as well as the BIA’s orders denying their individual motions to reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and de novo due process claims. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We dismiss the petition for review in No. 08-70983. We deny the petition for review in No. 08-74549. We grant the petition for review in No. 08-74560. We stay the mandate and refer these petitions to the Circuit Mediator.
To the extent that petitioners challenge the BIA’s January 10, 2008, order dismissing their appeal, we lack jurisdiction because the petition for review is not timely. See 8 U.S.C. § 1252(b)(1) (petition for review must be filed no later than 30 days after final removal order).
The BIA did not abuse its discretion when it denied petitioner Ana Elia Valdo-vinos Quiroz’s motion, because construed as either a motion to reopen or reconsider, it was untimely. See 8 C.F.R. § 1003.2(c)(2), (b)(2).
The BIA abused its discretion when it determined that petitioner Maria Valdovinos Quiroz’s untimely motion to reopen was not subject to equitable tolling of the motions deadline. See Iturribarria, 321 F.3d at 897 (court recognizes tolling of motions deadline during periods where petitioner is prevented from filing because of deception, fraud, or error). In its decision, the BIA noted that Maria was advised by present counsel of a possible ineffective assistance of counsel claim on May 14, 2008, and Maria filed her motion to reopen on that basis on July 30, 2008, less than 90 days after the advice from counsel. See Iturribarria, 321 F.3d at 899.
*730Although Maria’s motion did not completely satisfy the requirements of Matter of Lozada, 19 I. & N. Dec. 637, 689 (BIA 1988), strict compliance is not required here because the ineffective assistance of counsel is plain on the face of the record. See Castillo-Perez v. INS, 212 F.3d 518, 525-26 (9th Cir.2000) (strict Lozada compliance not required where ineffective assistance of counsel is plain on the face of the record). At the initial hearing on remand, Maria’s former counsel failed to inform the IJ that her U.S. citizen daughter, who the BIA had earlier noted suffers from “serious” paranoid schizophrenia, would soon turn 21 years old. See 8 U.S.C. § 1101(b)(1) (defining “child,” in part, as a person under 21). As a result, once the daughter turned 21, she was no longer a “qualifying relative” for Maria, and the IJ was unable to consider Maria’s application for cancellation of removal. See 8 U.S.C. § 1229b(b)(l).
We therefore remand Maria’s case for a prejudice determination, and any other equitable relief the agency may consider appropriate, including any relief that Ana may be eligible for.
We stay the mandate, and refer these petitions to the Circuit Mediator to explore possible resolution through mediation, considering petitioner Maria Valdovinos Qui-roz’s status as a beneficiary of an 1-130 visa petition filed by her United States citizen daughter, Yvonne; a substantial portion of the Quiroz family’s lawful status in the United States; and the facts related to ineffectiveness of counsel and the consequences described in this disposition. Submission of this appeal is vacated until further order of the Court. If, in the sole judgment of the Circuit Mediator, resolution through mediation is not possible, the Circuit Mediator shall inform the panel. The Circuit Mediator is instructed to provide a report to the panel every ninety (90) days following the issuance of this order. The panel will retain jurisdiction over these petitions for review.
Ana Elia Valdovinos Quiroz’s motion to file her untimely reply brief is granted.
In No. 08-70983, PETITION FOR REVIEW DISMISSED.
In No. 08-74549, PETITION FOR REVIEW DENIED.
In No. 08-74650, PETITION FOR REVIEW GRANTED.
MANDATE STAYED; PETITIONS REFERRED TO CIRCUIT MEDIATOR.
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/8480432/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lester Hardy 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. See Hardy v. Branker, No. 5:08-et-03163-H (E.D.N.C. Dec. 14, 2009). Further, we deny Hardy’s objection to the fee for this appeal being charged to his inmate account. 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/8480435/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shenae A. Outerbridge appeals from the tax court’s order disallowing her claimed business expenses and determining a deficiency in her 2006 income tax. We have reviewed the record and the tax court’s opinion and find no abuse of discretion and no clear error. Accordingly, we affirm for the reasons stated by the tax court. Out-erbridge v. Comm’r of Internal Revenue, Tax Ct. No. 7907-08, 2009 WL 2169870 (U.S.T.C. July 21, 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/8480436/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michelle Walker appeals the district court’s order accepting the recommendation of the magistrate judge and dismissing her civil action under 28 U.S.C. § 1915(e)(2)(B) (2006) for lack of subject matter jurisdiction. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Walker v. Fouche, No. 3:10-cv-00179-JFA, 2010 WL 1463456 (D.S.C. Apr. 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/8480438/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jamerson Devoir Tillman appeals the district court’s order dismissing his Fed. R.Crim.P. 41(g) motion as time-barred: We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Tillman v. United States, No. 1:08-cv-3362-AW, 2009 WL 2151201 (D. Md. filed July 14, 2009; entered July 15, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480453/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wayne D. Butts 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. Butts v. Ofogh, No. 2:09-cv-00140-JBF-FBS (E.D.Va. Mar. 1, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480439/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hassaan Haakim Rashaad 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 order for the reasons stated there. See United States v. Rashaad, No. 3:01-cr-00195-LHT-1 (W.D.N.C. Aug. 12, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480440/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Steven Cupp appeals the district court’s order accepting the recommendation of the magistrate judge and dismissing 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. Cupp v. Brown, No. 2:08-cv-00060-REM-JSK, 2009 WL 3711954 (N.D.W.Va. Nov. 3, 2009). We dispense with oral ai'gument 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/8480441/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carlos R. Mayberry appeals the district court’s order dismissing his 42 U.S.C. § 1983'(2006) complaint without prejudice for failure to comply with a court order to particularize his complaint. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The.order Mayberry seeks to appeal is neither a final order nor an appeal-able interlocutory or collateral order. See Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1067 (4th Cir.1993). 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/8480442/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Curtis D. Shuler 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. See Shuler v. Vaughn, No. 5:08-ct-03088-BO (E.D.N.C. Jan. 15, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480443/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Steve Carl Chadwick-El appeals the district court’s order dismissing 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. See Chadwick-El v. Connor, No. 1:09-cv-03331-RDB (D.Md. Jan. 7, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480444/ | 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 his petition for a writ of audita querela. We have reviewed the record and find no reversible error. Accordingly, we affirm. See United States v. Torres, 282 F.3d 1241, 1245 (10th Cir.2002) (“[A] writ of audita querela is not available to a petitioner when other remedies exist, such as a motion to vacate sentence under 28 U.S.C. § 2255.”) (internal quotation marks omitted). 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/8480445/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Firas Abdul Razzaq Al-Qaisi appeals the district court’s order dismissing his civil complaint for lack of jurisdiction. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Al-Qaisi v. Am. Military Forces, No. 1:09-cv-01192-JCC-JFA (E.D.Va. Apr. 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/8480454/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth J. Johnson, Jr., 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. Johnson v. Cannon, No. 4:08-cv-00776-PMD, 2010 WL 936706 (D.S.C. Mar. 15, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480449/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth Terrell Dalton appeals the district court’s order granting his 18 U.S.C. § 3582(c)(2) (2006) motion for reduction of sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Dalton, No. 5:03-cr-00004-RLV-13 (W.D.N.C. Apr. 16, 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/8480450/ | *252Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Clarence Edward Alexander appeals the district court’s order denying his motion to reconsider the court’s earlier order granting his 18 U.S.C. § 3582(c)(2) (2006) motion for a reduction in sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm. See United States v. Goodwyn, 596 F.3d 233, 234-36 (4th Cir.2010) (holding that district court lacked authority to grant defendant’s motion to reconsider, filed eight months after the district court’s order ruling on original § 3582(c)(2) motion). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480451/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Brown 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. Brown v. Bynum, No. 3:08-cv-00129-RLW, 2010 WL 883765 (E.D.Va. Mar. 10, 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/8480455/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lawrence Holub appeals the district court’s order accepting the recommendation of the magistrate judge and dismissing with prejudice Holub’s motion for relief from judgment, filed pursuant to Federal Rule of Civil Procedure 60(b). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Holub v. United States, No. 2:09-cv-00062-REM-DJJ, 2010 WL 987802 (N.D.W.Va. Mar. 15, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480456/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Orlando Rapheal Clark 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. Clark v. Harrison, No. 5:08-ct-03114-D (E.D.N.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/8480458/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kaimel L. Glenn 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. Glenn v. CMS, No. 1:09-cv-01700-WDQ, 2010 WL 1490030 (D.Md. Apr. 8, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480459/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Steve Dias appeals the district court’s order denying his second 18 U.S.C. § 3582(c)(2) (2006) motion for reduction of sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm. United States v. Dias, No. 3:04-cr-00259-HEH-2 (E.D.Va. Mar. 1, 2010); see also United States v. Goodwyn, 596 F.3d 233, 234-36 (4th Cir.2010) (hold*264ing that district court lacked authority to grant defendant’s motion to reconsider, filed eight months after the district court’s order ruling on original § 3582(c)(2) motion). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480460/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bradley Shane Sheppard seeks to appeal the district court’s order denying his Fed.R.Civ.P. 60(b) motion for reconsideration of his sentence. The order is not ap-pealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitu-' tional right.” 28 U.S.C. § 2253(c)(2) (2006). When the district court denied relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find 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 in 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 Sheppard has not made the requisite showing. The district court lacked jurisdiction to deny Sheppard’s Rule 60(b) motion on the merits because the claim he raised challenged the validity of his sentence, and thus the motion should have been construed as a successive 28 U.S.C.A. § 2255 (West Supp. 2010) motion: See Gonzalez v. Crosby, 545 U.S. 524, 531-32, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005) (explaining how to differentiate a true Rule 60(b) motion from an unauthorized second or successive ha-beas corpus petition); United States v. Winestock, 340 F.3d 200, 207 (4th Cir.2003) (same). In the absence of pre-filing authorization from this court, the district court lacked jurisdiction to hear a successive § 2255 motion. See 28 U.S.C. § 2244(b)(3) (2006). Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480461/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terry Lynn Everett 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. Everett v. Francis, No. 5:07-cv-00135-FPS-JES, 2010 WL 1490479 (N.D.W.Va. Apr. 13, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480462/ | *268Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larry Arnold Young appeals the district court’s order denying his motion for a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Young, No. 1:88-cr-00112-1, 2010 WL 1790438 (S.D.W.Va. Apr. 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/8480463/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rickey Lamont Jones appeals the district court’s order denying his 18 U.S.C. § 3582(c)(2) (2006) motion for reduction of sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Jones, No. 3:97-cr-00177-JRS-1 (E.D.Va. Apr. 28, 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/8480464/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donald James Hurlbert 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. Hurlbert v. City of North Charleston, No. 9:09-cv-01084-HMH, 2010 WL 1492868 (D.S.C. Apr. 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/8480465/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth Earl Robinson appeals the district court’s order granting Defendant’s motion for injunctive relief in this 42 U.S.C. § 1983 (2006) action. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Robinson v. Haynes, No. 5:09-ct-03005-FL (E.D.N.C. Apr. 16, 2010). We dispense with oral argument'because the facts and *273legal 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/8480466/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sidney Derrod Evans appeals the district court’s order granting his motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See United States v. Evans, No. 2:02-cr-00225-JBF-2 (E.D.Va. filed Mar. 26, 2010 & entered Mar. 29, 2010); see also Dillon v. United States, -U.S.-, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010) (holding that United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), does not apply to § 3582(c)(2) proceedings). 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/8480467/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antonio Collins pleaded guilty to being a felon in possession of a firearm, in violation of 28 U.S.C. §§ 922(g)(1) and § 924(a)(2). Pursuant to a plea agreement, Collins preserved his right to appeal the denial of his motion to suppress evidence of the firearm seized from his person during a pat-down of his clothing, conducted in conjunction with the search of a vehicle in which he was riding as a passenger. We have reviewed the record and the district court’s opinion and find no reversible error. Accordingly, we affirm on the reasoning of the district court. See United States v. Collins, 650 F.Supp.2d 527 (S.D.W.Va.2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480468/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard Dwayne Allison appeals the district court’s order denying his motion filed pursuant to 18 U.S.C. § 3582(c)(2) (2006), which sought a reduction in sentence based upon the amendments to the crack cocaine sentencing guidelines. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Allison, No. 1:04-cr-00093-gmw-pms-1 (W.D.Va. Apr. 7, 2009). We deny the Government’s motion to dismiss the appeal and dispense with oral argument because the facts and' legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480469/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bruce Lee Johnson appeals the district court’s order granting his 18 U.S.C. § 3582(c) (2006) motion. We have reviewed the record and find no reversible error. See Dillon v. United States, — U.S.-, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010); United States v. Dunphy, 551 F.3d 247, 250-52 (4th Cir.2009). Accordingly, we affirm for the reasons stated by the district court. United States v. Johnson, No. 4:02-cr-00579-CWH-2 (D.S.C. Feb. 1, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480470/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larry Edward Hendricks appeals the district court’s orders adopting the recommendation of the magistrate judge and denying Hendricks’ petition for a writ of audita querela and denying reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Hendricks v. McMaster, No. 3:09-cv-01924-DCN (D.S.C. Sept. 17, 2009; Jan. 14, 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/8480471/ | Affirmed in part; dismissed in part by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Douglas Antrum, a state prisoner, appeals the district court’s order denying relief on his Fed.R.Civ.P. 11 motion for sanctions. We have reviewed the record and find no reversible error. Accordingly, we affirm the denial of sanctions for the reasons stated by the district court. See Antrum v. Johnson, No. 2:07-cvr00552-JBF-JEB (E.D. Va. filed July 30, 2009 & entered July 31, 2009).
The district court also denied relief on Antrum’s Fed.R.Civ.P. 60(b) motion challenging the prior denial of his petition under 28 U.S.C. § 2254 (2006). That portion of the order is not appealable unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1) (2006). A certificate of ap-pealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595. We have independently reviewed the record and conclude that Antrum has not made the requisite showing. Accordingly, we dismiss the portion of the appeal denying Antrum’s Rule 60(b) motion relating to the prior denial of his 28 U.S.C. § 2254 petition.
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 IN PART; DISMISSED IN PART. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480472/ | W. EUGENE DAVIS, Circuit Judge.*
Plaintiff UTEX Communications Corporation (“UTEX”) appeals the judgment of the district court which affirmed the order of the Public Utility Commission of Texas (“PUCT”) declining to consider proposed amendments to the contract controlling the relationship between UTEX and defendant Southwestern Bell Telephone Company, d/b/a AT & T Texas, because the requested amendments were beyond the scope of its proceedings. Because PUCT’s order was not arbitrary or capricious, we AFFIRM.
I.
This case arises under the Telecommunications Act of 1996 (the “Act”) which amended the Communications Act of 1934 to deregulate telephone services that had previously been provided by a single company within each local area. The Act required incumbent local exchange carriers (“ILECs” or “Incumbents”), like AT & T Texas, which had previously held a monopoly, to enter into interconnection agreements (“ICAs” or “Agreements”) with competitive local exchange carriers (“CLECs” or “Local Carriers”) like plaintiff UTEX. Each ICA sets the terms and conditions on which an Incumbent will provide a Local Carrier with interconnection to the Incumbent’s network and use of individual elements of the incumbent’s network on an unbundled basis. The individual elements are called unbundled network elements (“UNEs” or “Elements”). The Act gives the FCC the discretion to determine which Elements will be unbundled.
Local Carriers can enter into Agreements with Incumbents in two ways. First, a Local Carrier and an Incumbent can attempt to negotiate an Agreement, followed by arbitration of any open issues before the state utility commission. The final Agreement is subject to the approval by the state utility commission and review by the federal district court. Alternatively, under 47 U.S.C. § 252(i), a Local Carrier may adopt an existing Agreement between an Incumbent and another Local Carrier which has previously been approved by the state utility commission. UTEX chose the second option by adopting an Agreement that AT & T Texas had negotiated with another Local Carrier owned by the principals of UTEX in 2000 (the “UTEX/AT & T Texas 2000 ICA”).
In 2000, when the UTEX / AT & T Texas 2000 ICA was approved, the FCC’s *333Local Competition Order was in effect, identifying certain Elements that Incumbents were required to make available to Local Carriers. The validity of the FCC’s rules in the Local Competition Order was litigated over several years thereafter and resulted in several modifications, including the 2003 Triennial Review Order (“TRO”) and the 2005 Triennial Review Remand Order (“TRRO”). The TRO and TRRO changed the Elements that the Incumbents were required to unbundle and-provide to Local Carriers.
Most ICAs, including the UTEX/AT & T Texas 2000 ICA, include a “change of law” provision that allows for the Agreement to be amended to reflect changes in the law which affect the terms of the Agreement as negotiated and approved. In 2004, AT & T Texas petitioned PUCT to conform Agreements with twenty-eight Local Carriers, including UTEX, to the current law pursuant to the change of law provisions in the Agreements. The petition came before PUCT in Docket 30459. The stated purpose of the filing was to change the terms of all non-standard form Agreements, like UTEX’s, to conform to the FCC’s orders in TRO and TRRO. UTEX argued that the scope of Docket 30459 should include negotiation of pricing and other terms to be added to its Agreement to allow it to access the Elements available after the change in law. AT & T Texas argued and PUCT agreed that Docket 30459 was limited in scope to conform Elements in the parties’ Agreements to the new FCC rules and did not include items unaffected by TRO and TRRO. UTEX appealed to the district court.
The district court determined that the “missing provisions UTEX requested to have added were available at the time the 2000 Agreement was negotiated and finalized” and that there has been “no change in the FCC rules that would allow UTEX to seek a modification of the 2000 Agreement through the change-of-law provision” in its Agreement to obtain the terms suggested by UTEX. Accordingly, the district court concluded that PUCT “did not act arbitrarily or capriciously when it determined that UTEX’s request to add missing provisions was outside the scope of the proceedings initiated by AT & T under the change-of-law provision of the 2000 ICA.” UTEX appeals the district court’s order.
Since July 31, 2002, another Docket affecting these parties has been pending at PUCT. Docket 26381 concerns an arbitration of a new Agreement being negotiated between UTEX and AT & T Texas to replace the existing UTEX/AT & T Texas 2000 ICA, which is the Agreement being amended in the change of law proceeding in Docket 30459. After UTEX informed PUCT arbitrators in docket 26381 that all the issues involved Voice Over Internet Protocols (VoIP), PUCT abated the arbitration based on its understanding that the FCC needed to first establish standards for this feature. UTEX filed a petition with the FCC asking the FCC to preempt PUCT’s jurisdiction over Docket 26381 and negotiate the agreement itself. The FCC denied UTEX’s petition, stating that PUCT should arbitrate based on existing law regarding VoIP. PUCT has initiated rulemaking to establish Texas’s VoIP standards. PUCT has stated that once that rulemaking is complete, it will complete the arbitration of a replacement Agreement between UTEX and AT & T Texas in Docket 26381.
After oral argument was heard in this case, this court was informed that UTEX filed for Chapter 11 bankruptcy relief in the Western District of Texas, triggering the automatic stay of this case under 11 U.S.C. § 362. The court was informed by letter dated May 14, 2010, that the stay *334was lifted by order of the Bankruptcy Court dated April 23, 2010. Accordingly, we proceed with this appeal.
II.
This court considers de novo the legal issue of whether the agency’s actions are in compliance with the Act and reviews all other decisions under an arbitrary and capricious standard. Sw. Bell Tel. Co. v. PUCT, 208 F.3d 475, 482 (5th Cir.2000).
III.
At issue in this case is the scope of Docket 30459. PUCT has broad discretion to control what matters it will consider in a particular docket. Reliant Energy, Inc. v. PUC, 153 S.W.3d 174, 194 (Tex.App.Austin 2004)(PUCT has authority to consolidate issues from different dockets in a single generic proceeding); El Paso v. Public Util. Comm’n, 839 S.W.2d 895, 926 (Tex.App.Austin 1992), rev’d in part on other grounds, 883 S.W.2d 179 (Tex.1994)(PUCT has power to sever issues as “[a]ny other result would defeat the legislative intent in delegating duties to the Commission for more efficient administration”).
UTEX wants access to two specific Elements, DS3 Loops and DSL-capable Loops. These Elements are on the current FCC list of Elements that Incumbents must make available. They were also available under FCC rules in place at the time the UTEX/AT & T Texas 2000 ICA was adopted. However, according to UTEX, AT & T Texas will not allow UTEX to access them because AT & T Texas claims that them current Agreement (UTEX/AT & T Texas 2000 ICA) does not have specific prices, terms for ordering, or provisioning or certain cross-connects that are necessary to make the loops function.
UTEX argues that the scope of Docket 30459 should include the negotiation of terms to allow it to access DS3 Loops and DSL-capable loops that are on the current list of available Elements. It bolsters its argument with the fact that Docket 26381, the attempt to negotiate a new Agreement with AT & T Texas, has been abated by the arbitrators, leaving it with no way to resolve this issue. AT & T Texas argued and PUCT agreed that Docket 30459 was limited in scope to conform Elements in the parties’ Agreement to the new FCC rules. The district court agreed. We also agree.
UTEX contends that AT & T Texas refuses to make DS3 and DSL loops available because of deficiencies in the UTEX/AT & T Texas 2000 ICA. It is clear to us, however, that any deficiencies in the Agreement in this respect were not created by the change in law resulting from TRO and TRRO. UTEX states in its brief that “AT & T refuses to provide two specific UNEs (DS3 Loops and DSL-capable Loops) to UTEX under the current agreement because AT & T insists the current terms do not have specific prices, terms for ordering, or provisioning or certain ‘cross-connects’ that are necessary to make the loops function. UTEX has been trying to secure these ‘missing’ terms ... for over seven years.” Accordingly, the problems with the missing terms and the Agreement between UTEX and AT & T Texas predate both the TRO and TRRO, as well as AT & T Texas’s filing of this change of law proceeding.
PUCT’s ruling states that “UTEX admits that the TRO and TRRO do not expressly require changes to existing manual or mechanized pre-ordering and ordering processes, but explains that its concern is that there are no existing processes for certain UNEs (or connections to or between them) that are specifically retained *335in those orders.” PUCT correctly recognized that the TRO and TRRO did not affect or create this deficiency in UTEX’s Agreement with AT & T Texas. The Elements UTEX wants access to were available both at the time the Agreement was adopted and after the issuance of the TRO and TRRO. The lack of “specific prices, terms for ordering, or provisioning or certain ‘cross-connects’ that are necessary to make the loops function” in the Agreement was not a problem created by those orders. In other words, UTEX’s prospects of obtaining functioning DS3 and DSL loops was no better or worse after TRO and TRRO. Because PUCT considered docket 30459 solely dedicated to implementing amendments to the contracts required by the change in law following the issuance of TRO and TRRO, it concluded that UTEX’s request was beyond the scope of the proceeding.
PUCT’s decision to limit the scope of 30459 was particularly appropriate because that proceeding involved not only AT & T Texas and UTEX, but also twenty-seven other CLEC’s who had the same or similar Agreements with AT & T Texas. PUCT was entitled to conclude that introduction of individual contract issues into this proceeding would be unwieldy.
In addition, despite UTEX’s arguments to the contrary, nothing in the Act, FCC rules or TRO or TRRO in particular, requires PUCT to consider its ancillary contract dispute issues in this change of law proceeding or requires PUCT or the district court to review the full Agreement, as amended, for compliance with the Act.
In sum, we agree with PUCT that “[t]hese questions regarding Element availability have no relationship to the TRO and TRRO and were not impacted by those FCC decisions. In fact, they appear to be issues predating those Orders altogether.” In other words, the terms UTEX is seeking to add to its Agreement with AT & T Texas are issues independent of the issues created by the changes in the law caused by TRO and TRRO and instead involve a separate contract dispute with AT & T Texas. PUCT’s decision that those claims should be brought in a separate proceeding or addressed in the new agreement under Docket 26381 was not arbitrary or capricious.
UTEX also takes the position that PUCT erred by sending UTEX to Docket 26381 to resolve issues related to the full implementation of TRO and TRRO into its Agreement with AT & T Texas and by then abating that proceeding, leaving it unable to function. The district court dismissed UTEX’s claims related to Docket 26381 and UTEX admits that it did not appeal that dismissal. Accordingly, this court has no jurisdictional basis to review the abatement of the proceeding in Docket 26381.
IV.
For the reasons set forth above, we affirm the judgment of the district court. While UTEX’s access to the Elements under its Agreement with AT & T Texas continues to be subject to its contract dispute, those issues did not arise as a result of changes implemented by TRO or TRRO. Accordingly, this change of law proceeding does not encompass that dispute and PUCT’s decision to limit the scope of Docket 30456 accordingly was not arbitrary or capricious.
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/8480473/ | PER CURIAM: *
Charles Cooper was seriously injured while loading supplies onto the MW INTERNATIONAL THUNDER during the course of his employment. He settled his compensation claims with his employer, International Marine, and its parent company, International Offshore Services, (collectively “International”) through the administrative processes in the Longshore and Harbor Workers’ Compensation Act (“LHWCA”). Thereafter, he filed a complaint against International for negligence and sought damages, maintenance, and cure. International’s motion for summary judgment was granted. We AFFIRM.
BACKGROUND
On December 18, 2007, Cooper was carrying supplies aboard the docked MW INTERNATIONAL THUNDER when a wake from an unidentified passing ship caused the gang plank he was standing on to shift. This shift caused his lower right leg to become caught between the gang plank and the vessel, resulting in a serious injury. Cooper underwent surgery to repair a ruptured Achilles tendon, but was unable to make a full recovery.
On May 1, 2009, Cooper and International agreed to a Section 8(i) settlement of Cooper’s compensation claims under the LHWCA.1 In consideration for a lump sum payment to Cooper, the parties agreed that, “[a]pproval and payment of this agreed settlement shall discharge the liability of [International] for the payment of any further compensation and/or medical benefits as a result of the injury of December 18, 2007.”
Three days later, the District Director of the U.S. Department of Labor, 7th Compensation District, approved the settlement and entered a compensation order, *349which included the following finding of fact:
5. [International] ... shall be forever released and relieved from all past, present, and future medical expenses, rehabilitative expenses, workers’ compensation benefits, and any and all claims of whatsoever nature and kind arising heretofore or which may hereafter arise, growing out of any accident or injury or out of any medical treatment provided as a result of any accident or injury occurring prior to the date of this agreement.
Neither party appealed the compensation order to the Benefits Review Board, so it became final thirty days later. 33 U.S.C. § 921(a).
Approximately two months after the compensation order became final, Cooper filed a complaint in the United States District Court for the Eastern District of Louisiana asserting negligence claims arising out of the December 18, 2007 incident. He alleged violations of the LHWCA, the Jones Act, general maritime law, and Louisiana law2 and sought damages, maintenance, and cure from International and the unidentified vessel that created the wake.
International filed a motion for summary judgment. It argued that Cooper’s negligence claims were barred by res judi-cata, because one of the findings of fact in the compensation order stated that International was relieved from liability for “any and all claims of whatsoever nature” arising out of the December 18, 2007 accident. In a supplemental memorandum, International also argued the district court lacked jurisdiction over the matter, because, by statute, an aggrieved party cannot challenge a final compensation order in district court.
Cooper acknowledged that Fifth Circuit precedent precluded him from seeking damages under the Jones Act since he had already settled his compensation claims under the LHWCA. See Sharp v. Johnson Bros. Corp., 973 F.2d 423, 426-27 (5th Cir.1992). He did not oppose summary judgment on this issue. However, Cooper argued that he could still recover damages under Section 905(b) of the LHWCA, which permits a qualifying injured employee to sue a vessel owner for negligence. 33 U.S.C. § 905(b). Cooper argued that summary judgment was not appropriate because there was a fact issue concerning whether he -intended' to release International from “any and all claims” arising out of the accident.
International’s motion for summary judgment was- granted. The district court construed Cooper’s claim that the language in the compensation order did not reflect the actual agreement between the parties as being a challenge to the District Director’s findings of fact. The district court held that it lacked jurisdiction over such a challenge. In addition, the district court held that res judicata barred Cooper’s claims, because the final compensation award released International from liability “for all payments of compensation and future medical benefits under the” LHWCA.
Cooper filed a timely appeal challenging the district court’s grant of summary judgment.
ANALYSIS
A grant of summary judgment is reviewed de novo, whereby we use the same standard to analyze the facts and law as *350did the district court. Croft v. Governor of Tex., 562 F.3d 735, 742 (5th Cir.2009). Summary judgment is proper if “there is no genuine issue as to any material fact.” Fed.R.Civ.P. 56(c)(2).
The LHWCA was designed by Congress to encourage the efficient administration of compensation claims for land-based maritime employees injured in or near harbor facilities. McLaurin v. Noble Drilling (U.S.), Inc., 529 F.3d 285, 289 (5th Cir.2008). Section 8(i) of the LHWCA gives wide latitude to employers and workers to settle qualifying compensation claims. 1A Benedict on Admiralty § 75 (rev. 7th ed. 2009). Agreed settlements must be approved by an administrative adjudicator; an employer’s liability is not discharged until such approval is given. Id. The purpose of the administrative approval is to ensure that the settlement is adequate and was not induced under duress. Id.
Once a settlement agreement has been approved and a compensation order issued, an aggrieved party has thirty days to file an administrative appeal with the Benefits Review Board. 33 U.S.C. § 921(a). If no appeal is taken within thirty days, the compensation order becomes final. Id.
A petition for review of a decision by the Benefits Review Board concerning a final compensation order may be brought in the “court of appeals for the circuit in which the injury occurred.” Id. § 921(c). That court has jurisdiction to affirm, modify, or set aside the terms of the order. Id. When no appeal is taken but an employer fails to comply with the order after it becomes final, the employee may file in district court for enforcement. Id. § 921(d).
A. Jurisdiction
In its order granting summary judgment, the district court held that it lacked jurisdiction over any challenge to the factual findings in the final compensation order. On appeal, Cooper argues that the District Director’s order was ambiguous. Cooper disputes that the order relieving International from liability for “any and all claims of whatsoever natui'e and kind” was a fact-finding. Cooper asserts that he is not challenging the factual finding itself, but rather he is seeking a judicial interpretation of the order.
Cooper clearly is asserting now that he only wants an interpretation of the final compensation order. In the district court, though, his arguments in his brief opposing summary judgment were otherwise. He argued that the District Director made “an erroneous finding of fact” when he held that the plaintiff had released the defendants from “any and all claims of whatsoever nature” from the accident. He alleged that such a broad release “was not what the plaintiff bargained for” in settling the case. Making the factual nature of the claim clear, Cooper asserted in the district court that he “did not intend, by executing the settlement agreement, to release the defendants from” all claims resulting from the accident.
There may well be a serious question about whether the District Director went further than the parties intended. The question cannot be answered here though. If Cooper believed the District Director’s order did not reflect the agreement the parties reached in the settlement agreement, he could have sought reconsideration by the Director. Failing that, he had the option to appeal the order to the Benefits Review Board. Id. § 921(a).
The district court properly found that it did not have jurisdiction over such a challenge. Id. § 921(c), (d).
Cooper’s new argument on appeal, not presented to the district court, is not *351considered. Nunez v. Allstate Ins. Co., 604 F.3d 840, 846 (5th Cir.2010).
B. Res Judicata
Cooper argues that regardless of whether he has settled all workers’ compensation claims, he still can bring claims for negligence against the vessel’s owner. 33 U.S.C. § 905(b); see McLaurin, 529 F.3d at 289. The defendants argue that despite this general principle, Cooper’s separate negligence claims are barred by res judicata arising from his broad settlement agreement.
Once a final judgment on the merits of a prior action is entered, the parties and those in privity with them may not reliti-gate issues that either were or at the least could have been brought in the action. Oreck Direct, LLC v. Dyson, Inc., 560 F.3d 398, 401 (5th Cir.2009). Res judicata applies even when an administrative agency was the venue of the first action, provided the agency acted in a judicial capacity, gave the parties sufficient opportunity to present their case, and resolved any disputed fact questions properly brought before it. Gibson v. U.S. Postal Serv., 380 F.3d 886, 889 (5th Cir.2004).
“Four elements must be met for a claim to be barred by res judicata.” Oreck, 560 F.3d at 401. Cooper concedes that the first three elements are met, but he challenges the district court’s holding that the fourth element — that the same claim or cause of action is involved in both cases— is met. He argues that his claim in the administrative proceedings was for compensation and his claim in the district court is for damages.
The District Director’s finding of fact in the final compensation order was that International was released from liability from “workers’ compensation benefits, and any and all claims of whatsoever nature” arising out of the December 18, 2007 incident. This language was unambiguous. It does not matter that the language may have been errant, as that was an issue to resolve on appeal from the Director. International has no further liability connected with the December 18, 2007 incident.
The district court correctly held that res judicata precluded Cooper from relitigat-ing this issue. AFFIRMED.
Pursuant to 5th Cir R. 47.5, the court .has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
. The LHWCA is codified at 33 U.S.C: § 901, et seq. A settlement reached under Section 908(i) is commonly referred to as a Section 8(i) settlement.
. The district court noted that Cooper agreed to dismiss the claims under the Jones Act and general maritime law, and that his complaint did not identify the specific Louisiana statutes he claims were violated. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480474/ | PER CURIAM: *
Billy Frank Hale, Texas prisoner # 693364, proceeding pro se, moves for leave to proceed in forma pauperis (IFP) in an appeal from the district court’s summary judgment dismissing his 42 U.S.C. § 1983 action as frivolous. Hale’s IFP motion is a challenge to the district court’s certification that his appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.1997).
Hale contends that the defendant, Leann Pena, caused his prison craft shop privileges to be revoked in retaliation for his complaints against her. Prison officials may not retaliate against an inmate for exercising the First Amendment right to complain to a supervisor about a guard’s misconduct. Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir.1995). However, retaliation claims are “regarded with skepticism” in order to avoid embroiling federal courts in every disciplinary act that occurs in a prison. Id. at 1166. Hale must be able either to produce direct evidence of retaliatory motivation or to show a “chronology of events from which retaliation may plausibly be inferred.” See id. Summary judgment is proper if Pena has demonstrated that there are no genuine issues of material fact and that she is entitled to a judgment as a matter of law. See id. at 1164; Fed.R.Civ.P. 56(e)(2). A factual issue is not “material” unless its resolution would affect the outcome of the suit under the applicable law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In order to show a contested issue of fact, Hale argues that the stated reason for the revocation was invalid because he was not among the least active prisoners in the craft shop as Pena and other witnesses asserted. Hale’s evidence does not show his craft shop activity in relation to that of other prisoners. He fails to identify a contested issue of fact that is material to his retaliation claim. See Woods, 60 F.3d at 1164. More significantly, he does not show any triable issue concerning a retaliatory motive because he fails to refute summary judgment evidence establishing that Pena was not even aware of his informal complaint against her at the time of the alleged retaliation.
Hale fails to show that he will present a nonfrivolous issue on appeal. See Howard v. King, 707 F.2d 215, 220 (5th Cir.1983). *353Accordingly, his motion for leave to proceed IFP is DENIED, and the appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 n. 24; 5th Cir. R. 42.2.
This dismissal and the dismissal by the district court each count as one strike under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.1996). Hale is therefore WARNED that if he accumulates three strikes under Section 1915(g), he will not be able to proceed IFP in any civil action or appeal filed while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury. See § 1915(g).
IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.
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/8480475/ | PER CURIAM: *
Kirthidhar Bayavarpu, a native and citizen of India, petitions this court to review *354the decision of the Board of Immigration Appeals (BIA) dismissing his appeal of the Immigration Judge’s order of removal. The BIA concluded that Bayavarpu, who did not apply for asylum, had not demonstrated eligibility for withholding of removal because Bayavarpu “failed to show a clear probability of future persecution on account of a ground protected under the [Immigration and Nationality] Act.”
We review the BIA’s legal conclusions de novo “unless a conclusion embodies the [BIA’s] interpretation of an ambiguous provision of a statute that it administers; a conclusion of the latter type is entitled to the deference prescribed by Chevron U.S.A. Inc. v. Natural Resources Defense Council.”1 Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir.2006) (footnotes omitted). “Factual findings are reviewed for substantial evidence, which requires only that the BIA’s decisions be supported by record evidence and be substantially reasonable.” Shaikh v. Holder, 588 F.3d 861, 863 (5th Cir.2009) (internal quotation marks and citations omitted).
“[W]ithholding of removal is a mandatory form of relief if an alien’s life or freedom would be threatened in the country of removal because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” Id. “An alien must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.” Id.
Bayavarpu argues that the BIA erred in concluding that his claimed status as one of the “people targeted by the Naxalites” did not constitute a “particular social group” under the Act. The Naxalites, or People’s War Group, is an extremist political faction in India. The BIA has defined “particular social group” as a group whose members share “common characteristics that members of the group either cannot change, or should not be required to change because such characteristics are fundamental to their individual identities.” In re Kasinga, 21 I. & N. Dec. 357, 366 (BIA 1996). The BIA has provided the following factors to consider when determining whether a “particular social group” exists: (1) “whether the group’s shared characteristic gives the members the requisite social visibility to make them readily identifiable in society” and (2) “whether the group can be defined with sufficient particularity to delimit its membership.” In re A-M-E & J-G-U-, 24 I. & N. Dec. 69, 69 (BIA 2007).
“ ‘[A] social group cannot be defined exclusively by the fact that its members have been subjected to harm.’ ” Faye v. Holder, 580 F.3d 37, 41 (1st Cir.2009) (quoting A-M-E & J-G-U, 24 I. & N. Dec at 74). Because “people targeted by the Naxal-ites” is defined wholly by its members having been harmed, it is not a particular social group under the BIA’s interpretation of that term. Bayavarpu has not demonstrated that the BIA’s interpretation of “particular social group” is unreasonable. Therefore, the conclusion that “people [like himself] targeted by the Nax-alites” does not constitute such a group is entitled to deference under Chevron.
Bayavarpu also argues that the BIA erred when it failed to address or grant relief based on his assertion that a clear probability of persecution exists on account of his political opinion, i.e., his neutrality. Bayavarpu cites no cases in which this court has adopted the hazardous neu*355trality doctrine, and we do not need to consider that doctrine today. Bayavarpu’s case is similar to that of the alien in INS v. Elias-Zacarias, 502 U.S. 478, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), who sought to avoid joining a guerilla group in his country. Like the record in Elias-Zacarias, the record in the instant case is devoid of evidence either of a political motive on Bayavarpu’s part, even considering that he previously served as president of the student union at his college, or of a belief by the Naxalites that Bayavarpu held any specific political opinion.
The legal conclusions of the BIA are reasonable and entitled to deference, and the factual conclusions of the BIA are supported by the record and are also reasonable. Accordingly, Bayavarpu’s petition for review is DENIED.
Pursuant to 5th Cir R. 47.5, the court has determined that this opinion should not be published and is not precedent except under *354the limited circumstances set forth in 5th Cir. R. 47.5.4.
. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480480/ | PER CURIAM: *
The attorney appointed to represent David Ramos has moved for leave to with*426draw 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). Ramos has filed a response. Our independent review of the record, counsel’s brief, and Ramos’s response 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. Ramos’s untimely request for appointment of new counsel on appeal is DENIED. See United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir.1998).
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be *426published 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/8480482/ | ORDER
Jael Speights, a Wisconsin inmate, brought this action under 28 U.S.C. § 2254 after he was disciplined and sanctioned with the loss of good time. The district court denied the petition. We affirm the judgment.
A sergeant at the prison where Speights was housed accused him of soliciting her sexually and pouring semen into her open soft drink while she was away from her desk. According to the sergeant, Speights had borrowed a pen shortly before her drink was contaminated, and when she went to his cell to retrieve the pen, Speights was naked. Later, after the sergeant momentarily left her desk to store a toilet plunger that Speights returned to her, she discovered the tainted drink. The sergeant added that Speights had previously told her he would “fraternize” with her if he knew he wouldn’t be punished. A captain interviewed the sergeant and watched a surveillance video showing that Speights was alone near the sergeant’s desk during the relevant time frame. And an investigator told the captain that Speights had admitted masturbating in his cell before the sergeant’s drink was tampered with. Relying on a conduct report drafted by the captain and a written statement from Speights, a hearing committee found Speights guilty of battery, sexual conduct, and soliciting prison staff. See Wis. Admin. Code §§ DOC 303.12(2), 303.15(l)(d) & (f), 303.26(6). The hearing committee never watched the surveillance video, but Speights had the help of a staff advocate, and the advocate had watched the tape and assured the committee that it did not contain exculpatory evidence.
After exhausting his administrative remedies, Speights sought review in the Wisconsin courts, as he was required to do before turning to federal court. See McAtee v. Cowan, 250 F.3d 506, 508 (7th Cir.2001). Speights argued that there was insufficient evidence to sustain the disciplinary charges. A Wisconsin circuit court upheld the hearing committee’s decision and the Wisconsin Court of Appeals affirmed the circuit court. See State ex rel. Speights v. Grams, 768 N.W.2d 63, 2009 WL 617559 (Wis.Ct.App.2009) (unpub*563lished opinion). The appeals court deemed the evidence adequate to support the hearing committee’s determination and, in reaching that conclusion, reasoned that State ex rel. Ortega v. McCaughtry, 221 Wis.2d 876, 388-90, 585 N.W.2d 640 (Wis.Ct.App.1998) (citing Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)), authorized the committee to rely on the captain’s summary of the surveillance video instead of reviewing it directly. Grams, 2009 WL 617559, at *1-2. Speights did not timely seek review with the Wisconsin Supreme Court.
Speights then filed his petition for habe-as corpus. He argued that the hearing committee did not provide an adequate statement of reasons explaining its decision and also had been required to view the surveillance video. The district court conducted a preliminary review of his petition under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts and dismissed it. The district court noted that Speights had not sought review with the Wisconsin Supreme Court, as would normally be required, but concluded it was appropriate to bypass the issue of procedural default because Speights’s petition failed on the merits. See Torzala v. United States, 545 F.3d 517, 522 (7th Cir.2008). The district court analyzed the opinion of the Wisconsin appellate court and was satisfied that Speights could not show that the appellate court unreasonably applied federal law. In particular the court concluded that the Wisconsin Court of Appeals “was correct in stating that the disciplinary hearing committee was not required to view the video surveillance tape.”
On appeal, Speights does not challenge the district court’s review of the decision of the Wisconsin Court of Appeals but instead complains generally that the hearing committee, and all of the intermediate courts leading to this one, should have reviewed the surveillance video. But the Wisconsin courts decided the merits of Speights’s challenge to his prison discipline, so 28 U.S.C. § 2254(d) cabins the scope of federal review. See White v. Ind. Parole Bd., 266 F.3d 759, 763-66 (7th Cir.2001); Walker v. OBrien, 216 F.3d 626, 633, 639 (7th Cir.2000). A district court cannot grant relief unless the state-court adjudication was contrary to or an unreasonable application of federal law as determined by the Supreme Court or was based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d); Lucas v. Montgomery, 583 F.3d 1028, 1030 (7th Cir.2009). Speights does not argue that the district court erroneously applied § 2254(d), so the judgment must stand.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480483/ | ORDER
Michael Elkins appeals from an order revoking his supervised release. His appointed appellate lawyers have concluded that the appeal is frivolous and move to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Elkins was notified of counsel’s submission but has not responded. See CIR. R. 51(b).
In 1997, Elkins was convicted of bank fraud, 18 U.S.C. § 1344, and sentenced to 24 months’ imprisonment and 5 years’ supervised release. He was also ordered to pay restitution of $8,493. See United States v. Elkins, 176 F.3d 1016 (7th Cir.1999). The federal sentence was imposed to run consecutively to state terms Elkins already was serving, so he was not re*565leased from federal prison until September 2007. The conditions of his release barred Elkins from having a checking account and included requirements that he participate in drug. testing and pay at least $50 a month in restitution.
Elkins stopped paying restitution after the first $100, and when he also missed a drug test and a meeting with his probation officer, the probation officer conducted a surprise home visit. By then Elkins had absconded from Wisconsin to Illinois with his girlfriend, herself a convicted felon. In the process, Elkins had procured a Wisconsin driver’s license in the name of his girlfriend’s husband and used it to withdraw $7,500 from the man’s bank account. Elkins later obtained a Social Security card in the name of a man serving time in a Wisconsin prison. With this new identity, Elkins obtained an Illinois driver’s license, opened a checking account; and got a job. Soon, though, the Marshals Service tracked him down, and the probation officer petitioned the district court to revoke his supervised release.
The district court conducted a revocation hearing after twice appointing new lawyers at Elkins’s behest. Elkins did not contest the basis for the revocation petition, and the court found that' he had committed 10 violations, including engaging in new criminal conduct, opening a checking account, failing to pay restitution, skipping a drug test, associating with a felon, and leaving the Eastern District of Wisconsin without permission. The most serious, a Grade A violation, was committing bank fraud. The district court revoked the term of supervision and imposed 36 months’ reimprisonment. A Wisconsin court already had revoked Elkins’s state supervision,, and the district court ordered that the federal incarceration run consecutively to the stat.e time. As the district court explained, the Grade A violation, see U.S.S.G. § 7Bl.l(a)(l)(B), coupled with a criminal history category of VI, yielded a reimprisonment range of 33 to 41 months. See id. § 7B1.4. In selecting 36 months, the court noted the number and severity of violations, the failure of past prison sentences to deter Elkins, and the public’s need for protection. The district court also reimposed restitution in the amount outstanding, $8,393.
Elkins has advised counsel that he wishes to challenge not just the length of his reimprisonment, but also the decision to revoke his supervised release. Thus, counsel consider potential challenges to the factual basis of the revocation and the district court’s exercise of discretion to revoke. See United States v. Wheaton, 610 F.3d 389, 390 (7th Cir.2010). According to counsel, Elkins particularly objects that he was found to have committed new crimes even though he incurred no new convictions. A conviction, though, is not a prerequisite to revocation. See U.S.S.G. § 7B1.1 cmt. n. 1; United States v. Perkins, 526 F.3d 1107, 1109 (8th Cir.2008); United States v. Fleming, 9 F.3d 1253, 1254 (7th Cir.1993). In any event, a report prepared by the probation officer to document the violations is replete with evidence (including photographs and video stills) of the bank fraud and other crimes. And with the factual basis for the petition intact, the district court’s decision to follow the Sentencing • Commission’s recommendation and revoke supervised release could not have been an abuse of discretion. See U.S.S.G. § 7B1.3(a)(1).
Counsel also explore whether to argue that the reimprisonment term is “plainly unreasonable.” See United States v. Kizeart, 505 F.3d 672, 674 (7th Cir.2007). The length of the term is within the statutory maximum, 18 U.S.C. § 3583(e)(3), and, as counsel recognize, the district court’s explanation for selecting 36 *566months reflects consideration of the applicable policy statements and sentencing factors. See 18 U.S.C. § 3553(a); U.S.S.G. ch. 7, pt. B. A challenge to the length of reimprisonment would thus be frivolous. See United States v. Salinas, 365 F.3d 582, 588-89 (7th Cir.2004); United States v. Hale, 107 F.3d 526, 530 (7th Cir.1997).
As their final point, counsel explain that Elkins wants to argue that some or all of his three lawyers in the district court were constitutionally ineffective. Yet we have held that the constitutional right to counsel does not extend to revocation proceedings where, as here, the defendant did not deny committing the alleged violations or offer any substantial ground in justification or mitigation. United States v. Eskridge, 445 F.3d 930, 931-32 (7th Cir.2006). Moreover, appellate counsel have not identified any arguable deficiency in the performance of their predecessors. A claim of ineffective assistance, then, is likely a nonstarter, though we agree with appellate counsel that Elkins should save any such claim for collateral review where the record can be more fully developed. See Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Harris, 394 F.3d 543, 557-58 (7th Cir.2005).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480484/ | ORDER
Bridgette Weaver filed suit in 2007 against her former employer, BorgWar-ner Transmission Systems, alleging that it had discriminated against her on the basis of race, sex, disability, and age, and violated her rights under the Family Medical Leave Act. The district court granted Weaver leave to proceed in forma pauperis. Two years later BorgWarner moved for summary judgment, asserting that Weaver had falsely alleged poverty on her application to proceed in forma pauperis. (BorgWarner cited Weaver’s 2006 tax return, which stated that her income that year was nearly $200,000, and IRS forms showing that she won almost $94,000 from gambling in the 12 months before her application.) Because Weaver did not comply with Local Rule 56.1(b)(3) in her response, the district court deemed BorgWarner’s statements of fact admitted. See N.D. III. R. 56.1(b)(3)(C). The court concluded that Weaver’s representations on her application were “undeniably false.” The court therefore granted summary judgment for BorgWarner and — in light of Weaver’s misrepresentations — dismissed her suit with prejudice. See 28 U.S.C. § 1915(e)(2)(A).
Proceeding pro se, Weaver appeals, but in doing so pays almost no heed to the requirements of Federal Rule of Appellate Procedure 28(a). Her opening brief is two pages long and lacks — among many other necessities — an argument section. See Fed. R.App. P. 28(a)(9). In fact, it offers no argument at all about the district court’s decision, and no citations to legal authority or portions of the record that might aid her appeal. See id. Her reply brief attempts to fix some of the deficiencies in her opening brief, but it, too, contains no argument section; instead, Weaver only offers hints of possible contentions, scattered across her statement of the case and statement of facts. These potential arguments are undeveloped, unsupported, and in any event come too late. See Bodenstab v. County of Cook, 569 F.3d 651, 658 (7th Cir.2009).
Although we must construe Weaver’s pro se pleadings liberally, she is not free to ignore procedural rules. See Pearle Vision, Inc. v. Romm, 541 F.3d 751, 758 (7th Cir.2008). Failure to comply with Rule 28 warrants dismissal of an appeal. See Anderson v. Hardman, 241 F.3d 544, 545-46 (7th Cir.2001). It does not fall to us, in the wake of Weaver’s noncompliance, to craft arguments and perform legal research for her. See id. Furthermore, Weaver’s only factual assertion in her reply about her application to proceed in forma pauperis misses the point. She insists that at the time of her application, she had no money. Yet the application required her to list funds received “in the past twelve months,” and she listed noth*568ing but public assistance despite having received substantial other income during that period.
With Weaver providing no cogent argument for disturbing the district court’s decision, we DISMISS the appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480485/ | ORDER
Jesus Nunez-Natividad, a Mexican citizen who has twice been removed from the *569United States, pleaded guilty to being in the country again without authorization. See 8 U.S.C. § 1326(a). At sentencing, the district court imposed a term of 57 months’ imprisonment, to be followed by a 3-year term of supervised release. The written judgment, however, states that the term of supervised release is to be 4 years.
Nunez-Natividad raises but one issue on appeal. He argues — and the government concedes — that the 4-year term of supervised release stated in the written judgment exceeds the maximum authorized by statute and conflicts with the oral pronouncement at sentencing. ■ The parties seek a remand for correction of the judgment.
We agree with the parties that the written judgment is erroneous. Nunez-Nativi-dad was convicted of ah aggravated felony before he was first removed from the United States, so the statutory-maximum term of imprisonment for his § 1326(a) violation was 20 years, making it a Class C felony. See 8 U.S.C. § 1326(b)(2); 18 U.S.C. § 3559(a)(3). The district court thus could not impose a term of supervised release longer than 3 years. See 18 U.S.C. § 3583(b)(2); United States v. Showalter, 933 F.2d 573, 574 (7th Cir.1991). But even if the statute permitted a 4-year term, the written judgment could not be given effect because it conflicts with the court’s oral pronouncement. See United States v. Bonner, 522 F.3d 804, 808 (7th Cir.2008).
A remand is unnecessary, however, because we can correct the error ourselves. The discrepancy in the written judgment is a clerical error,- correctable at any time under Federal Rule of Criminal Procedure 36. See United States v. Johnson, 571 F.3d 716, 718 (7th Cir.2009); United States v. Eskridge, 445 F.3d 930, 934 (7th Cir. 2006). Rule 36 permits us to fix clerical mistakes ourselves. See Fed.R.Crim.P. 1(a)(1) (Rules apply in criminal proceedings in courts of appeals); United States v. Pulley, 601 F.3d 660, 668 n. 4 (7th Cir.2010); see also United States v. Boyd, 208 F.3d 638, 649 (7th Cir.2000), vacated on other grounds, 531 U.S. 1135, 121 S.Ct. 1072, 148 L.Ed.2d 949 (2001). The clerk of the district court is ordered to amend the written judgment to conform with the sentencing judge’s oral pronouncement that Nunez-Natividad’s term of supervised release is 3 years. With that modification, we AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480486/ | ORDER
An immigration judge terminated Sucic Zlatan’s status as an asylee and ordered him removed from the United States. He appealed to the Board of Immigration Appeals (“BIA”), which affirmed the immigration judge’s decision. Zlatan then filed a motion to reconsider with the BIA, which denied the motion as untimely. He seeks review of that decision, but we must dismiss his petition for lack of jurisdiction.
Zlatan, a native of the former Yugoslavia and citizen of Serbia, came to the United States as a visitor in 1993 and was granted asylum in 1994 based on his fear of political persecution in Yugoslavia. In 2008 he was convicted in Illinois state court of stalking, 720 ILCS 5/12 — 7.3(a)(1), cyberstalking, 720 ILCS 5/12-7.5(a), and harassment through electronic communications, 720 ILCS 135/1-2. (An appellate court vacated the latter conviction but affirmed the other two. People v. Sucic, 401 Ill.App.3d 492, 340 Ill.Dec. 634, 928 N.E.2d 1231 (2010).) Six months after his convic*571tion, Zlatan was placed into removal proceedings, at which point he requested permanent-resident status, sought to maintain his asylee status, and sought withholding of removal and protection under the Convention Against Torture.
After hearings, the immigration judge found Zlatan inadmissible because his stalking and cyberstalking offenses were crimes of moral turpitude, see 8 U.S.C. § 1182(a)(2)(A)(i)(I), and, alternatively, found him removable because those offenses were aggravated felonies, see 8 U.S.C. § 1227(a)(2)(A)(iii). The judge terminated Zlatan’s asylum status; denied his application for permanent-resident status and his requests for withholding of removal and protection under the Convention Against Torture; and ordered him removed to Serbia. Zlatan appealed to the BIA, which on April 13, 2009, adopted and affirmed the decision of the immigration judge.
On May 18, 2009, Zlatan — detained in a county jail at the time — filed a motion to reconsider with the BIA. (That same day, he filed a petition for review of the BIA’s decision in this court. Because he did not file it within 30 days of the BIA’s order, see 8 U.S.C. § 1252(b)(1), we dismissed the petition for lack of jurisdiction. Zlatan v. Holder, No. 09-2302 (7th Cir. June 4, 2009).) The BIA denied Zlatan’s motion to reconsider as untimely, explaining that the motion needed to be filed 30 days after the BIA’s April 13 decision — i.e., by May 13— and that it received the motion on May 18. See 8 C.F.R. § 1003.2(b)(2). (The BIA does not observe a “mailbox” rule and does not consider a motion filed until the BIA has received it; a detention facility’s receipt of the motion for mailing does not suffice. See Board of Immigration Appeals Practice Manual, Ch. 3, § 3.1(a)(i), available at http://www.justice.gov/eoir/vll/ qapracmanual/pracmanual/chap3.pdf.) The BIA noted that Zlatan mailed his motion from the jail no earlier than May 11, and, citing In re Liadov, 23 I. & N. Dec. 990, 993 (BIA 2006), reasoned that the failure of the motion to arrive by May 13 was “not a ‘rare’ or ‘extraordinary’ circumstance that would warrant consideration of an untimely motion.” See 8 C.F.R. § 1003.2(a).
Zlatan seeks review of the denial of his motion to reconsider, but much of his petition focuses on the removal order. We lack jurisdiction to consider that subject, however, because the time period to obtain judicial review of the removal order has lapsed. Stone v. INS, 514 U.S. 386, 405-06, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995); Ajose v. Gonzales, 408 F.3d 393, 394-94 (7th Cir.2005). Even a timely motion to reconsider does not toll the time to seek review of the removal order, see Stone, 514 U.S. at 405-06, 115 S.Ct. 1537; Asere v. Gonzales, 439 F.3d 378, 380-81 (7th Cir.2006), much less an untimely motion.
Zlatan asserts that his motion to reconsider was timely, but we lack jurisdiction to examine the BIA’s denial of that motion because he has been found removable for committing crimes of moral turpitude and aggravated felonies. See 8 U.S.C. § 1252(a)(2)(C). That statute bars us from reviewing Zlatan’s removal order, see id., and its bar extends to subsequent motions to reconsider, see Martinez-Maldonado v. Gonzales, 437 F.3d 679, 683 (7th Cir.2006); Dave v. Ashcroft, 363 F.3d 649, 652 (7th Cir.2004). Finally, the BIA’s denial of the motion to reconsider does not fall within § 1252(a)(2)(D)’s exception — for constitutional or legal claims — to the jurisdiction-stripping provisions of § 1252(a)(2); the denial was discretionary and does not present a question of law. See 8 C.F.R. § 1003.2(a); Khan v. Filip, 554 F.3d 681, 687 (7th Cir.2009); Zamora-Mallari v. Mukasey, 514 F.3d 679, 694 (7th Cir.2008).
*572Accordingly, we must DISMISS the petition for want of jurisdiction.. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480487/ | ORDER
Shaun Chaney was a middle-man in a large mortgage fraud scheme. He pleaded guilty, and was sentenced to 84 months’ imprisonment. He appeals only his sentence and argues that the district court failed to adequately address his principal argument for mitigation, namely that he cooperated with the government. Because the sentencing transcript reflects that the district court addressed his principal arguments for mitigating his sentence, we affirm.
Shaun Chaney participated in a large mortgage fraud, spanning two years during the height of the housing bubble. It involved over forty properties and loan amounts in excess of nine million dollars. Chaney was a middle man in the scheme. In this capacity, he found straw buyers for *573the properties and received kickbacks between ten- to twenty-thousand dollars per deal.
In January 2007, the. FBI approached Chaney about his role in the scheme, and he immediately agreed to cooperate. At this time, he was warned that he had to abandon this activity. He pleaded guilty to wire fraud, and the parties contemplated that the government would file a § 5K.1 motion at sentencing because of his cooperation. He told the FBI much about the operation and testified before a grand jury. Despite his candor about the operation, he omitted the fact that after he agreed to cooperate he completed two more fraudulent deals. When the government learned about.this, it viewed Chaney’s behavior as breach of the plea agreement and notified him that it would not make a § 5K.1 motion for a reduced sentence.
At sentencing, his counsel agreed that Chaney exhibited poor judgment and was not entitled to the benefit of the plea agreement and a § 5K.1 motion. He did argue, however, that his cooperation merited a lesser sentence. When he pronounced his sentence, the judge acknowledged the defendant’s argument that his cooperation should be considered a mitigating factor: “The defendant argues that his cooperation is a mitigating factor in this case and a sentence below the advisory guidelines range would be sufficient to serve the purposes of sentencing. However, [Chaney] concedes that he, in fact, did a couple of things subsequently and even though his cooperation was truthful, that he should not have gotten involved in a couple areas that he got involved in.” The judge then sentenced him to 84 months’ imprisonment. Chaney appeals and argues that the district judge failed to address his argument that his cooperation merited a lower sentence.
I.
A sentencing judge must adequately explain the chosen sentence to allow for meaningful appellate review. Part of this entails addressing the defendant’s arguments of recognized legal merit for a lesser sentence. United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.2005). And when a judge fails to do so, he “is likely to have committed an error or oversight.” Id. We review de novo whether the district court followed proper sentencing procedure and addressed the defendant’s arguments of recognized legal merit. United States v. Curby, 595 F.3d 794, 796 (7th Cir.2010).
While we require a sentencing judge to address all grounds of recognized factual and legal merit that a defendant raises at sentencing, the amount of comment and explanation.given depends on the circumstances of the case. Id. at 797. And we look at the transcript for some assurance that the court actually exercised its discretion by considering the defendant’s argument. Id.
Here, the transcript reveals that the judge gave a fair amount of reasoning for his sentence. He acknowledged Chaney’s argument that his cooperation should be' considered a mitigating factor; he then countered, “However, [Chaney] concedes that he, in fact, did a couple of things subsequently and even though his cooperation was truthful, that he should not have gotten involved in a couple areas that he got involved in.” Here, it is clear what the judge was saying: Chaney had his chance to receive a big benefit for cooperating but his bad choices cost him that. We don’t require the judge to use any specific rhetorical formulation to show that he has considered an argument and found it unpersuasive. And we certainly don’t require the judge to add a superfluous sen*574tence, “Thus, I reject his argument for a lower sentence based on his cooperation,” for us to find he exercised his discretion and rejected the defendant’s argument.
The Judge said enough. This fraud amounted to over nine million dollars. And the testimony the government anticipated from Chaney’s cooperation was canceled once his subsequent illegal conduct was disclosed. Thus, the judge was well within his discretion to cancel out whatever mitigating considerations Chaney might have received.
II.
Therefore, based on a full review of the record before us, it is clear that the district court exercised his discretion by considering and rejecting Chaney’s argument for a lower sentence. The judgment of the district court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480490/ | ORDER
Patrick Turner appeals a district court decision affirming the denial of his claim for disability insurance benefits under the Social Security Act. We conclude that substantial evidence supports the administrative law judge’s determination that Turner was not entitled to disability insurance benefits and therefore affirm.
I. Background
Turner is 51 years old and lives in Streator, Illinois. He is married and has five children. He left high school at the start of his senior year, but earned his GED *583shortly thereafter. For the bulk of his professional life, he worked as a unionized painter-mostly at nuclear power plants. In 1998 while working at the LaSalle nuclear plant, Turner injured his lower back transporting two 100-pound buckets of paint. As a result of this accident, Turner’s back popped and pain radiated down his left leg. Turner was able to perform light-duty work for the following year until his neurologist advised him to stop working because he was on his feet too long. Turner ultimately received a workers’ compensation settlement in the amount of $175,000.
Turner filed his application for disability insurance benefits on December 5, 2002. His claim was denied initially and again upon reconsideration. Turner then requested an administrative hearing, which was held on December 1, 2005, before an Administrative Law (“ALJ”). The ALJ denied Turner’s claim.
A. The ALJ’s Ruling
The Social Security Act defines a disabled individual as one who is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 428(d)(1)(A). Under the regulations promulgated by the Commissioner of Social Security for evaluating disability claims, an individual is not considered disabled if his residual functioning capacity — along with the individual’s age, education, and work experience— allows him to perform a significant number of jobs. 20 C.F.R. § 404.1520(a)(4)(v). Based on these statutory and regulatory standards, the ALJ denied Turner’s claim for disability benefits.
The ALJ was confronted with conflicting medical evidence concerning the precise nature of Turner’s physical condition. The ALJ received medical reports from several doctors — some based on personal examinations of Turner, others based solely on a review of Turner’s medical files — including three who prepared reports at the request of Disability Determination Services (“DDS”). The ALJ also received a residual functional-capacity report (“RFC”) from a nurse-practitioner and heard testimony from Turner himself. Some of the medical evidence indicated that Turner could not perform even sedentary work due to persistent pain in his back, but the prevailing view was that Turner’s physical limitations were less severe than he claimed.
After reviewing and weighing the available evidence, the ALJ ultimately found that Turner “has the residual functional capacity to perform the physical exertional and nonexertional requirements of work except that he is limited to lifting no more than ten pounds at a time. He requires the option to alternate between sitting and standing.” While acknowledging that Turner could no longer perform his past work as a painter, the ALJ concluded that Turner’s capacity for sedentary work, in addition to his age, education, and work experience, directed a finding of “not disabled” given the applicable regulations and the number of jobs available to a person in Turner’s condition.
B. Subsequent Procedural History
Turner administratively appealed the ALJ’s decision to the Appeals Council. As part of this appeal, Turner submitted additional evidence for review. The Appeals Council incorporated these additional documents into the administrative record but agreed with the ALJ’s decision. Turner then sought judicial review. The parties agreed to conduct the proceedings before a magistrate judge who granted the Com*584missioner’s motion for summary judgment. Turner now appeals.
II. Discussion
The Social Security Act provides that “[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). “Evidence is substantial if it is sufficient for a reasonable person to accept as adequate to support the decision.” Johansen v. Barnhart, 314 F.3d 283, 287 (7th Cir.2002) (quotation marks omitted). “In addition to relying on substantial evidence, the ALJ must also explain his analysis of the evidence with enough detail and clarity to permit meaningful appellate review.” Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir.2005). Ultimately however, the issue before us is not whether Turner is disabled, but whether the findings of the ALJ were supported by substantial evidence. Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir.2003).
Furthermore, we can only consider evidence that was actually before the ALJ. 42 U.S.C. § 405(g); Rice v. Barnhart, 384 F.3d 363, 366 n. 2 (7th Cir.2004) (“Although technically a part of the administrative record, the additional evidence submitted to the Appeals Council ... cannot now be used as a basis for a finding of reversible error.”). This is important because Turner’s brief improperly includes multiple references to evidence that was never presented to the ALJ.1 With this framework in place, we now turn to the merits of Turner’s appeal. Turner attacks the validity of the ALJ’s findings on four separate grounds.
A. “Playing Doctor”
Turner’s first argument is that the ALJ impermissibly “played doctor” by substituting his personal observations for the considered judgments of medical professionals. See Rohan v. Chater, 98 F.3d 966, 970 (7th Cir.1996) (“ALJs must not succumb to the temptation to play doctor and make their own independent medical findings.”). In particular, Turner takes issue with the ALJ’s interpretation of an MRI taken on June 30, 1999. Turner claims that the MRI (which itself is not in the administrative record) indicates more extensive physical damage than the ALJ credited. We are satisfied that the ALJ considered the MRI through the perspective of the various doctors who reviewed the MRI report.
In particular, the ALJ specifically recounted Dr. Matthew Ross’s review of the results of Turner’s MRI. Dr. Ross personally examined Turner on two separate occasions as part of Turner’s then-pending workers’ compensation claim. In 2000 Dr. Ross reviewed the MRI in question and concluded that it showed degenerative disk changes and only a minimal left-sided L5-S1 disk herniation. Dr. James Graham, who conducted the first review of Turner’s medical files for the DDS, reached the same conclusion regarding the MRI, and he further determined that Turner was capable of frequently lifting items weighing up to 10 pounds (a limitation mirrored in the ALJ’s ultimate findings). The ALJ was critical of Dr. Aftab Khan, a doctor who conducted a personal examination of *585Turner at the direction of the DDS and who prepared the medical report that is most supportive of Turner’s claim for disability benefits. The ALJ noted that Dr. Khan apparently did not consider the MRI at all and instead relied on his observations about Turner’s physical limitations. After reviewing this medical evidence, the ALJ ultimately decided that the results of the MRI were not consistent with Turner’s claim that he was incapable of performing even sedentary work. This finding is well-supported by the medical evidence; the ALJ did not substitute his own judgment for that of the medical experts.
B. Dr. Khan
Turner’s second argument is that the ALJ-improperly discounted Dr. Khan’s conclusion — following a personal examination of Turner in 2003 at the behest of the DDS — that Turner could lift but not carry five pounds. Turner argues that this opinion is entitled to great weight because Khan was the only DDS doctor who examined him personally. To support this claim, Turner relies on Whitney v. Sehweiker, 695 F.2d 784, 789 (7th Cir.1982), but that case concerned the weight to. be given the opinions of. a treating physician, and Dr. Khan was not Turner’s treating physician. He examined Turner only once, and thus was not as intimately familiar with his medical history or course of treatment as a treating physician.
Importantly, the ALJ was quite clear in explaining why he was not persuaded by Dr. Khan’s report. The ALJ determined that Dr. Khan’s medical conclusions were based on Turner’s own reporting and responses in the examination room rather than' on objective medical evidence. “An ALJ may properly reject a doctor’s opinion if it appears to be based on a claimant’s exaggerated subjective allegations.” Dixon v. Massanari, 270 F.3d 1171, 1178 (7th Cir.2001). Indeed, Turner does not dispute that Dr. Khan’s findings were heavily influenced by Turner’s self-reporting of his physical limitations.
The ALJ also specifically explained the reasons why he suspected Turner of exaggerating his physical limitations to Dr. Khan. First, Turner was obviously aware that this DDS-directed examination would factor prominently in any subsequent disability hearing, so there was a clear motive for Turner to understate his physical capacity and overstate his limitations. Second, Turner “demonstrated significantly less functional ability” during his 2003 evaluation with Dr. Khan than he did in 2001 when he met for the second time with Dr. Ross. Following that 2001 visit, Dr. Ross had concluded that it was “realistic” that Turner could lift at the '25-pound level. The three other DDS physicians who reviewed Turner’s medical files also found that Turner was capable of much greater physical movement than he seemed to acknowledge during his visit with Dr. Khan.
Turner notes that his examination by Dr. Khan occurred two years after his last examination by Dr. Ross, and so his condition could have deteriorated by then. But there is no objective medical evidence that Turner’s physical condition actually worsened after 2001, and he does not identify any subsequent developments that could have plausibly exacerbated his condition. “An ALJ must only ‘minimally articulate his or her justification for rejecting or accepting specific evidence of a disability.’ ” Berger v. Astrue, 516 F.3d 539, 545 (7th Cir.2008) (quoting Rice, 384 F.3d at 371). Here, the ALJ exceeded this standard, and Turner has identified nothing in the record that undermines the ALJ’s explanation for discounting Dr. Khan’s opinions.
*586C. Nurse-Practitioner Duffield
Turner next argues that the ALJ erred by refusing to credit a 2005 RFC prepared by Patricia Duffield, a nurse-practitioner. Starting in 2002, Duffield performed annual examinations of Turner. Her primary purpose was to help Turner manage his pain, and to that end she regularly secured refills for his prescriptions for Vicodin and Ultram. In 2005 Duffield completed an RFC on Turner’s behalf. Duffield described Turner’s prognosis as “poor.” She also stated that Turner was not a malingerer, and that on a 1-10 scale, Turner self-rated his pain at 7-10 daily. Duffield noted that Turner could not fully flex his back and had an abnormal gait, sensory loss, reflex changes, muscle spasm, muscle atrophy, muscle weakness, and reported impaired sleep. Based on these findings, Duffield concluded that Turner would need to shift positions at will from sitting, standing or walking, and would be unable to do any of these three activities for more than two hours out of an eight-hour workday. Duffield also concluded that Turner could not stay seated for more than five minutes at a time and would require unscheduled breaks of between five and ten minutes every half hour in order to manage his pain.
Duffield’s assessment of Turner’s physical limitations is sharply at odds with the ALJ’s holding, and Turner contends that the ALJ erred in not giving Duffield’s account “controlling weight.” This argument falls short on multiple fronts. The Social Security Administration’s regulations provide that the opinion of a “treating source” will be given controlling weight only if “well-supported by medically acceptable clinical and laboratory diagnostic techniques and ... not inconsistent with the other substantial evidence in your case record.” 20 C.F.R. § 404.1527(d)(2). A nurse-practitioner, moreover, is not a “treating source.” See .20 C.F.R. § 416.902 (“Treating source means [a claimant’s] physician, psychologist, or other acceptable medical source .... ”); id. § 416.913(d)(1) (listing nurse-practitioner among occupations that are not “acceptable medical sources”).
Turner attempts to get around this problem by claiming that Duffield completed the 2005 RFC in collaboration with a supervising doctor, a Dr. Podzamsky. But there is no evidence that Podzamsky ever examined Turner — let alone treated him. Contrary to Turner’s assertions, Podzam-sky never “signed” the 2005 RFC. The last page of the RFC contains only a stamp bearing Podzamsky’s name; the report was completed and signed by Duffield. Turner insists that Duffield might have transcribed Podzamsky’s own observations. This is pure speculation; Duffield’s notes do not indicate that Podzamsky personally examined Turner. In sum, the ALJ had very solid reasons for concluding that Duffield alone was responsible for the 2005 RFC.
Furthermore, the ALJ concluded that “the limitations set forth in the report are dramatically inconsistent with the x-ray and MRI evidence as well as the clinical findings, and findings of Dr. Ross, the treating neurosurgeon, and would still be 'entitled to little weight.” In order to be entitled to controlling weight, a treating source’s opinion cannot be “inconsistent with the other substantial evidence [in the record],” § 404.1527(d)(2), and here, the ALJ carefully identified the ways in which the 2005 RFC was not in line with the bulk of the medical evidence in the record.
Turner correctly notes that the ALJ erroneously described Ross as a “treating neurosurgeon.” Ross examined Turner but was not in fact a treating physician. This error was harmless, however. There is absolutely no indication that the ALJ *587gave Ross’s opinion the “controlling weight” of a treating physician’s — on this matter or any other. Indeed, the point of the ALJ’s “dramatically inconsistent” statement is that the 2005 RFC is inconsistent with a host of other indicators regarding Turner’s physical condition. Every doctor who reviewed the MRI found only “minimal” herniation. Also, although Duf-field recorded that Turner experienced muscle atrophy, no other doctor observed this phenomenon. Similarly, Duffield noted greater sensory loss and reflex changes in Turner than did any of the doctors. Finally, the ALJ noted that Duffleld’s treatment notes were inconsistent with the significant and constant pain she attributed to Turner in her RFC. The ALJ’s decision to give Duffield’s opinion “little weight” was amply justified.
D. Turner’s Daily Activities
Turner’s final argument is that the ALJ erred in concluding that Turner’s daily activities revealed that he was less physically impaired than he claimed to be.2 The ALJ observed that Turner was capable of vacuuming, sweeping, dish-washing, cooking, grocery shopping, yard work, and fishing. Turner claims that the ALJ failed to acknowledge that he performs these activities slowly and with great pain and discomfort. This is essentially a challenge to the ALJ’s credibility determination, which is entitled to “special deference” on appeal. Powers v. Apfel, 207 F.3d 431, 435 (7th Cir.2000). We will only reverse an ALJ’s credibility determination if the claimant can show that it is “patently wrong,” id., and Turner has not satisfied' this high burden. Turner’s daily activities — even if accompanied by pain — can fairly be construed as inconsistent with his claim that he is physically unable to perform even sedentary work.
In short, substantial evidence supports the ALJ’s determination that Turner can perform sedentary work and thus is not disabled.
AFFIRMED.
. Section 405(g) does provide a mechanism for courts to compel the Commissioner to consider new evidence, "but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.” Turner asked the magistrate judge to grant a remand on this basis, but this request was denied on the grounds that the additional evidence could not be considered "material” to Turner’s disability claim. Turner did not challenge this holding on appeal, so we have no need to consider this issue any further.
. Turner claims in passing that the ALJ should have asked the vocational expert how a sit/stand/lie restriction would have altered Turner’s job prospects. This unsupported argument does not appear to have been raised below, so it is forfeited. Skarbek v. Barnhart, 390 F.3d 500, 505 (7th Cir.2004). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480491/ | *589ORDER
. An administrative law judge denied John Hoy’s disability claims, and the district court affirmed that decision. Hoy appeals. We affirm the judgment of the district court.
Hoy, now 55 years old, has an employment history consisting mostly of jobs involving heavy labor — in a steel mill, in a fish warehouse, as a day laborer — and one stint as an unarmed security guard, during which he made rounds of a building as a night watchman. He applied for Disability Insurance Benefits and Supplemental Security Income in September 2005, alleging that he had been disabled since August 1999 by abdominal pain from stab wounds; pain in his back and legs; a loss of-sight in his left éye; and a stye on his right eye. His applications were denied initially and upon reconsideration. In June 2007 he received a hearing before an administrative law judge (“ALJ”).
His grim medical history suggests that Hoy has a knack for finding trouble. In 1997 his girlfriend stabbed him several times in his back and his left deltoid. Following treatment in an emergency room, Hoy returned to the hospital a few days later complaining of weakness and numbness in his left arm. He was told to take Tylenol for any pain and given permission to resume regular activities. Hoy was stabbed again by his girlfriend — it is not clear whether this was the same girlfriend — in 1999, this time in the abdomen; he needed surgery to repair injuries to his duodenum and colon. Later that year, after he complained of vomiting blood and abdominal pain, he was diagnosed with a small bowel obstruction. He underwent surgery again; an examination the next month showed that his abdomen was normal, his wound was healing nicely, and that he was doing well.
Hoy was hit by a car in 2000. Doctors observed tenderness in his back, neck, chest, and abdomen, but x-rays were negative. He was discharged and prescribed Motrin and Flexeril, a muscle relaxant. Hoy was ambulatory when discharged, and he was cleared to walk and resume regular activities.
One month later Hoy suffered an injury to his right leg, where he was struck several times with a baseball bat, and returned to the -hospital. A doctor observed that he had a full range of motion in his knee and ankle. X-rays showed no definite fracture; the doctor diagnosed a contusion. Two months .later, Hoy broke his right leg during an altercation and underwent surgery, during which doctors installed a small titanium rod in his leg. He was discharged three days later with crutches, a knee immobilizer,, and pain medication. Later that day — after Hoy drank four 40-ounce bottles of beer and several glasses of wine, and apparently also used intravenous drugs — he removed the knee immobilizer, walked on his right leg, fell down, and was re-admitted to the hospital. He was given a cast to protect his leg and dischargéd the next day with pain medication.
Later in 2000, two men attacked and punched Hoy, sending him to the hospital with swelling over his left jaw, a loose tooth, a cut lip, and tenderness in his back. He was admitted for observation and then discharged with instructions to take Motrin for his pain.
Hoy’s eye problems started in 2002, when he received antibiotics for a stye on his right eye. The next year a chalazion— a lump in the eyelid — developed on his right eye; he was prescribed Motrin and referred to the hospital’s eye clinic. Hoy received antibiotics again in 2004 to treat another stye on his right eye. Later that year he was hit by a baseball bat in the *590left eye, left ribs, left arm, and left calf. Hoy reported that his vision was blurry in his left eye. His left eye was sutured and he was diagnosed with fractured ribs. In 2005 Hoy had another chalazion on his right eye, for which the treating physician prescribed Motrin and told him to stop drinking alcohol.
After Hoy applied for benefits, Dr. Scott Kale examined him at the request of the state Bureau of Disability Determination Services. Hoy said he had intermittent pain in his right leg that required him to use a cane, but he did not bring one to the exam. Kale noted that Hoy walked with a mild limp, but could walk without difficulty for several hundred feet. He concluded that Hoy did not need a cane or assistive device to walk. Kale also noted that Hoy was blind in his left eye and that he had intermittent mild lower back pain. Kale’s clinical impressions were that Hoy had mild hypertension; a history of abdominal injury; a history of fractures in his right leg, resulting in a mild limp; and a history of back pain, with a normal range of motion and without radiating pain.
Dr. Marion Panepinto performed a residual functional capacity (“RFC”) assessment of Hoy for the state agency. Panepinto’s opinion was that Hoy could occasionally lift or carry 50 pounds, frequently lift or carry 25 pounds, stand or walk for about six hours in an eight-hour workday, and sit for about six hours. Panepinto also concluded that Hoy could occasionally climb stairs or ramps and frequently stoop, kneel, crouch, or crawl. Panepinto found that Hoy had limited depth perception and field of vision because he was blind in his left eye, but that his visual impairment was not severe because he had 20/25 vision in his right eye. State agency physician Arj-mand Towfig affirmed Panepinto’s assessment.
At a hearing before the ALJ, Hoy testified that he could no longer work as a security guard because he could not turn or look out of his left eye, and because going up stairs on his rounds was too painful. He said that he had only worked “[m]aybe a couple of days” as a day laborer since stopping work as a security guard, but that he had not done a full day of work since 2000 because he was incapable of working eight hours.
Hoy testified that he was not seeing any doctors regularly, but went to a clinic to get pills for the pain in his back and leg. He said he had some vision in his left eye, but saw only shadows. He felt constant pain in his lower back, and the pain worsened when he tried to do any physical activity or pick up something “too heavy,” which he explained was anything over 15 or 20 pounds. Hoy said the pain in his right leg came and went, but increased when he climbed up and down stairs. He testified that he could walk in reasonable comfort on flat ground for about half a mile, or four city blocks. He also testified that he could sit or stand comfortably for about an hour before his leg bothered him. To relieve his back and leg pain, he wore a back brace and usually took extra-strength Tylenol, although he would get Tylenol 3 when he saw a doctor.
The ALJ posed a hypothetical question to the vocational expert (“VE”) at the hearing: Could someone of Hoy’s age and vocational background perform any of his past relevant work if he had limited depth perception and no left peripheral vision, and could occasionally lift 20 pounds; frequently lift 10 pounds and push or pull 20 pounds; stand, walk, or sit for six hours in an eight-hour day; and climb occasionally? According to the VE, those restrictions would not prevent the person from working as an unarmed security guard. In response to a question from Hoy’s attor*591ney, the VE testified that the individual could still work as a security guard if he could only occasionally push or pull 20 pounds.
The ALJ used the required five-step analysis to evaluate Hoy’s claim, see 20 C.F.R. §§ 404.1520, 416.920, and concluded that he was not disabled. The ALJ first found that Hoy had not performed substantial gainful activity since the alleged onset date of August 31, 1999 (step one), and that he had three severe impairments: blindness in his left eye, lower back pain, and residual pain from his formerly-fractured right leg (step two). But the ALJ found that Hoy did not have an impairment or combination of impairments that met or equaled any of the impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (step three), and that he could perform past relevant work as an unarmed security guard (step four).
After the Appeals Council declined to review the ALJ’s decision, Hoy filed this action in the district court. A magistrate judge, presiding with the parties’ consent, issued a comprehensive and thorough opinion granting judgment for the Commissioner.
We uphold an ALJ’s decision if it is supported by substantial evidence, i.e., relevant evidence that a reasonable person might accept as adequate. Schaaf v. Astrue, 602 F.3d 869, 874 (7th Cir.2010). Although an ALJ need not address every piece of evidence, he must provide a “logical bridge” between the evidence and his conclusions. Terry v. Astrue, 580 F.3d 471, 475 (7th Cir.2009).
Although the ALJ found at step two that Hoy suffered from three severe impairments, Hoy contends that the ALJ erred by not mentioning many of his other conditions and injuries, including his various stab wounds and fractures; his bowel resection; a corneal abrasion in his right eye; a chalazion on his right eye; pain in his chest, eye, and back; and hypertension. Hoy suggests that these conditions were severe because they could not be improved. But whether a condition or injury is a severe impairment does not turn on whether it can be improved; an impairment, or combination of impairments, is severe if it significantly limits the claimant’s physical or mental ability to perform basic work activities. See 20 C.F.R. §§ 404.1520(c), 416.920(c); Barnhart v. Thomas, 540 U.S. 20, 24, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003). Hoy points to nothing in the record to support a finding that the conditions or injuries not mentioned by the ALJ met that standard.
Hoy challenges the ALJ’s finding at step three that he did not suffer from an impairment or combination of impairments that met or equaled any of those listed. But Hoy concedes that his impairments do not meet or equal any of the listed impairments. At the hearing, his attorney told the ALJ that he “couldn’t find a listing that applied” to Hoy:
... [Hoy] does not seem to come into all of the, all of the criteria that must be there in order to pigeon hole him into one of the rules. I cannot do that. I will candidly tell you as an officer of the court. I just don’t see anything that, that, where he’s on all fours, but I do think that, and I believe the fourth step in the descending criteria to determine disability, he should be found disabled under that.
A.R. 34-35. Hoy’s attorney conceded as much again at oral argument and expressed the view that Hoy should be found disabled under “the grids,” referring to the Medical-Vocational Guidelines, 20 C.F.R. Pt. 404, Subpt. P, App. 2, which can come into play at step five of an ALJ’s analysis.
*592Nevertheless, Hoy seeks to argue — as an alternative to the contention that he is disabled under the grids — that the ALJ committed reversible error at step three finding that he did not meet or equal listing 1.06 (fractures of the femur, tibia, pelvis, or one or more of the tarsal bones). Here Hoy’s argument founders, because— as the Commissioner points out-one of the requirements for satisfying listing 1.06 is an inability to ambulate effectively, such that the claimant needs a hand-held assis-tive device. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 1.00B2b, 1.06. Hoy cites no medical evidence to show that he cannot ambulate effectively. Although he told Drs. Kane and Panepinto that he used a cane, he did not bring one to either exam, and both doctors observed him walking without difficulty, aside from a mild limp.
Hoy also challenges the ALJ’s determination at step four that his statements about the intensity, persistence, and limiting effects of his symptoms were only partially credible. Contrary to Hoy’s assertions, however, the ALJ here supported his credibility determination with evidence in the record, as he was required to do. See SSR 96-7p. The ALJ noted that there were no clinical or objective findings to support Hoy’s claim that his back pain was disabling. The ALJ pointed to Dr. Kale’s observation that Hoy walked with a mild limp but did not suffer from radiating pain and exhibited a normal range of motion. The ALJ also cited Hoy’s testimony that the pain in his leg was intermittent— worsening when the weather changed, or when he went up or down stairs — and that he could walk four blocks without stopping, sit for an hour, and stand for an hour. Because the ALJ reasonably supported his finding that Hoy was only partially credible about his symptoms, we cannot say that the ALJ’s credibility determination was patently wrong. See Schaaf, 602 F.3d at 875.
Hoy next challenges the ALJ’s finding at step four that his RFC allowed him to do his past relevant work. See 20 C.F.R. § 404.1520(a)(4), (f); 20 C.F.R. § 416.920(a)(4), (f). Hoy first argues that the ALJ erred by not considering the limiting effect of all of his impairments— severe and otherwise — in combination. See 20 C.F.R. §§ 404.1523,416.923; Denton v. Astrue, 596 F.3d 419, 423 (7th Cir.2010). Specifically, Hoy contends that at step four the ALJ ignored the combined effect of his multiple fractures, hypertension, and arthritis on his ability to work. Hoy, however, only speculates about the effect of these conditions on him; he suggests, for example, that hypertension would increase the pain in his right leg, and that many other limitations could be posited with his conditions.
The ALJ did consider the effect of Hoy’s multiple fractures: He noted that Hoy’s back pain was not surprising given his “multiple trauma,” and as part of his RFC finding he concluded — after taking into account “reasonable discomfort caused by his multiple traumas” — that Hoy would only occasionally be able to climb. As for hypertension and arthritis, the record is bare regarding any limitations they may have caused, so the ALJ could not have found any limitations stemming from them. See SSR 96-8p. Hoy did not mention hypertension or arthritis in his testimony before the ALJ, and although Dr. Kale found that Hoy had mild hypertension, the record contains no suggestion that it limited him. Nor is there any indication in the record that Hoy suffers from arthritis. And we need not consider Hoy’s speculative limitations derived from those conditions, which he did not offer in testimony and are unsupported in the record. See 20 C.F.R. §§ 404.1512, 416.912; *593Schmidt v. Barnhart, 395 F.3d 737, 745-46 (7th Cir.2005).
Hoy also maintains that the finding at step four was flawed because the ALJ’s hypothetical question to the VE did not include his inability to focus or concentrate. It is true that an ALJ’s question must include all limitations supported by medical evidence in the record. Stewart v. Astrue, 561 F.3d 679, 684 (7th Cir.2009). However, Hoy never testified that he had difficulty concentrating, and no evidence of such a problem is in the record.
Because Hoy has not shown that the ALJ erred in finding at step four that he was not disabled, we need not consider his argument that he should be found disabled under the grids at step five. We AFFIRM the district court’s judgment. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480503/ | ON MOTION
ORDER
The appellees move without opposition for leave to file a joint response to Ronald A. Katz Technology Licensing LP’s (Katz) motion to strike that is contained in Katz’s reply brief. Katz does not oppose and separately moves without opposition for leave to file a reply if the appellees’ motion is granted. Katz also moves for judicial notice of a district court order in a related case. The document is attached to the motion for judicial notice.
Upon consideration thereof,
It Is Ordered That:
(1) The appellees’ motion is granted.
(2) Katz’s motion for leave to reply is granted to the extent that Katz may file a response, not to exceed four pages, within seven calendar days of the date of filing of this order.
(3) Katz’s motion for judicial notice is granted.
*995(4) A copy of this order, the appellees’ response, and Katz’s response shall be transmitted to the merits panel assigned to hear these eases. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480495/ | MEMORANDUM **
Yaffet Matindas, a native and citizen of Indonesia, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review *670for substantial evidence. Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.2009). We deny in part and grant in part the petition for review, and we remand.
The record does not compel the conclusion that changed or extraordinary circumstances excused Matindas’ untimely filed asylum application. See 8 C.F.R. § 1208.4(a)(4), (5); Ramadan v. Gonzales, 479 F.3d 646, 656-58 (9th Cir.2007) (per curiam). Accordingly, Matindas’ asylum claim fails.
Substantial evidence supports the BIA’s denial of CAT relief because Matindas failed to establish it is more likely than not that he will be tortured upon return to Indonesia. See Wakkary, 558 F.3d at 1067-68.
Matindas suffered death threats, the destruction of two businesses, two attacks where his car was stopped and stolen, and a forced relocation, all on account of his Christian religion. Substantial evidence does not support the BIA’s determination that these incidents did not rise to the level of persecution. See Baballah v. Ashcroft, 367 F.3d 1067, 1076 (9th Cir.2004) (cumulative effects of attacks and economic harassment compelled finding of persecution). In addition, in denying Matindas’ withholding of removal claim, the BIA did not apply the disfavored group analysis set forth in Sael v. Ashcroft, 386 F.3d 922, 927-29 (9th Cir.2004). Intervening case law holds the disfavored group analysis applies to Matindas withholding of removal claim. See Wakkary, 558 F.3d at 1062-65: see also Tampubolon v. Holder, 610 F.3d 1056, 1062 (9th Cir.2010) (“[A]ny reasonable factfinder would be compelled to conclude on this record that Christian Indonesians are a disfavored group.”). Accordingly, we grant the petition for review with respect to Matindas’ withholding of removal claim and remand for further proceedings consistent with this disposition. See INS v. Ventura, 537 U.S. 12,16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).
Each party shall bear its own costs for this petition for review.
PETITION DENIED in part; GRANTED in part; REMANDED.
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/8480497/ | MEMORANDUM *
Ricardo Servando Frutos-Lopez pled guilty in the Central District of California to violating 8 U.S.C. § 1326. His plea was conditional on the right to appeal a number of issues related to the removal order upon which his § 1326 conviction is predicated. We affirm.
After Frutos-Lopez was convicted for second-degree robbery in violation of California Penal Code § 211, an immigration judge in March 2001 ruled that the conviction was an “aggravated felony,” and the government then removed Frutos-Lopez pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). Frutos-Lopez came back into the United States without permission. When the government charged Frutos-Lopez with violation of § 1326 in the District of Nevada, he successfully argued for dismissal of the indictment because the March 2001 removal order erroneously categorized his robbery conviction as an “aggravated felony” based on then-governing Ninth Circuit precedent. The district court in Nevada dismissed the indictment, but Frutos-Lo-pez never asked that court to vacate the removal order, and the court never purported to take such an action. Thus, we have no occasion to consider whether a district court in criminal proceedings pursuant to a § 1326 charge has jurisdiction to vacate the underlying removal order.
The government removed FrutosLopez again, and he again returned to the United States without permission. Frutos-Lopez was charged in the Central District of California with a new violation of § 1326 based on the March 2001 removal order. Frutos-Lopez did not argue collateral estoppel (issue preclusion) before the district court. Review is therefore for plain error. Given the intervening change in law caused by Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007), the district court did *747not plainly err by refusing to follow the decision by the District of Nevada. “[E]ven where the core requirements of issue preclusion are met, an exception to the general rule may apply when a ‘change in [the] applicable legal context’ intervenes.” Bobby v. Bies, — U.S.-, 129 S.Ct. 2145, 2152, 173 L.Ed.2d 1173 (2009) (second alteration in original) (quoting Restatement (Second) of Judgments § 28 cmt.c (1980)); Richey v. IRS, 9 F.3d 1407, 1410 (9th Cir.1993); Artukovic v. INS, 693 F.2d 894, 898 (9th Cir.1982).
Frutos-Lopez’s remaining arguments are foreclosed by circuit precedent. His conviction for second-degree robbery under California Penal Code § 211 is an “aggravated felony” under the removal statute, 8 U.S.C. § 1227(a)(2)(A)(iii), because such a conviction is a categorical crime of violence under 8 U.S.C. § 1101(a)(43)(F) and because Frutos-Lopez was sentenced to at least one year for his crime. See United States v. BecerrilLopez, 541 F.3d 881, 889 (9th Cir.2008), cert. denied, — U.S.-, 129 S.Ct. 959, 173 L.Ed.2d 149 (2009); United States v. McDougherty, 920 F.2d 569, 573 (9th Cir.1990) (“[R]obbery under California law is ... by definition a crime of violence.”). That conviction is also a “crime of violence” under U.S.S.G. § 2L1.2. Becerril-Lopez, 541 F.3d at 893. And we have already rejected the argument that § 1326(b) is facially unconstitutional. United States v. Salazar-Lopez, 506 F.3d 748, 751 n. 3 (9th Cir.2007).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480498/ | ORDER DENYING CERTIFICATE OF APPEALABILITY*
JEROME A. HOLMES, Circuit Judge.
Brian Dewayne Rawle, a Wyoming state prisoner, seeks a certificate of appealability (“COA”) to challenge the district court’s denial of his application for a writ of habe-as corpus pursuant to 28 U.S.C. § 2254. We exercise jurisdiction under 28 U.S.C. §§ 1291 and 2253(a) and conclude that Mr. Rawle has failed to make a substantial showing of the denial of a constitutional right. Thus, we deny the request for a COA and dismiss the appeal.
BACKGROUND
In April 2005, a jury convicted Mr. Rawle of felony murder, attempted aggra*770vated robbery, and conspiracy to commit aggravated robbery under Wyoming law. Although Mr. Rawle appealed his conviction on several grounds, he neglected to raise an ineffective-assistance-of-trial-counsel claim on direct appeal. In April 2007, the Wyoming Supreme Court affirmed his conviction. Rawle v. State, 155 P.3d 1024, 1031 (Wyo.2007).
In June 2008, Mr. Rawle filed a petition for post-conviction relief in Wyoming state court. Mr. Rawle argued that he was deprived of his right to the effective assistance of trial counsel, pursuant to the Sixth and Fourteenth Amendments to the U.S. Constitution, because his counsel had not investigated whether he had any mental deficiencies and had not advised him properly regarding a possible plea agreement. Mr. Rawle asserted that if his trial counsel had obtained a neuro-psychological evaluation, counsel could have shown that Mr. Rawle lacked the requisite intent to commit attempted aggravated robbery.
In July 2008, the state district court denied the petition for post-conviction relief. The state district court held that the ineffective-assistance-of-trial-counsel claim was procedurally barred by Wyo. Stat. Ann. § 7-14-103(a)(i)1 because Mr. Rawle had not raised it on direct appeal. The state district court also found that Mr. Rawle did not qualify for an exception to this procedural bar because he had not (1) proffered credible evidence that either was not known to him or not reasonably available to him at the time of his direct appeal, or (2) alleged the denial of effective assistance of appellate counsel. In August 2008, the Wyoming Supreme Court likewise denied Mr. Rawle’s petition for post-conviction relief.
On September 3, 2008, Mr. Rawle filed an application for a writ of habeas corpus in federal district court. As in the post-conviction proceeding in state court, Mr. Rawle claimed that he was denied his constitutional right to the effective assistance of trial counsel. In a motion to dismiss, the State of Wyoming raised the affirmative defense of an independent and adequate state procedural bar against this claim. The district court held that Mr. Rawle had not exhausted his ineffective-assistance-of-trial-counsel claim in state court and that this claim was procedurally barred by Wyo. Stat. Ann. § 7-14-103(a)(1). Even if this claim were not procedurally barred, the district court concluded that Mr. Rawle would not be entitled to relief because he had not demonstrated that his trial counsel was constitutionally deficient or that his trial counsel’s performance resulted in prejudice. The district court dismissed the action and declined to grant a COA. Mr. Rawle filed a timely notice of appeal.
DISCUSSION
“A COA is a jurisdictional pre-requisite to our review.” Clark v. Oklahoma, 468 F.3d 711, 713 (10th Cir.2006) (citing Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)). We *771will issue a COA “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When the district court denies the petitioner’s claims on procedural grounds, the petitioner must demonstrate “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, 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.
On appeal, Mr. Rawle requests a COA to challenge the denial of his application for a writ of habeas corpus. He contends that the district court erred in holding that Wyo. Stat. Ann. § 7-14-103 proeedurally barred his ineffective-assistance-of-counsel claim. Assuming, arguendo, that the Wyoming statute does not proeedurally bar this claim, Mr. Rawle also argues that he was deprived of his constitutional right to the effective assistance of trial counsel because his attorney failed to investigate his mental deficiencies and to advise him properly regarding a possible plea agreement.
1. Procedural Bar
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) “strictly limits a federal court’s ability to consider issues on habeas review that the state eourt deemed proeedurally barred.” Hammon v. Ward, 466 F.3d 919, 925 (10th Cir.2006). Under AEDPA, a court will not consider “[cjlaims that are defaulted in state court on adequate and independent state procedural grounds ..., unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice.” Fairchild v. Workman, 579 F.3d 1134, 1141 (10th Cir.2009) (internal quotation marks omitted). “A state procedural default is ‘independent’ if it relies on state law, rather than federal law.” Id. (internal quotation marks omitted). “A state procedural default is ‘adequate’ if it is firmly established and regularly followed.” Smith v. Workman, 550 F.3d 1258, 1274 (10th Cir.2008), cert. denied, — U.S.-, 130 S.Ct. 238, 175 L.Ed.2d 163 (2009); accord Fairchild, 579 F.3d at 1141 (“A state ground will be considered adequate only if it is strictly or regularly followed and applied evenhandedly to all similar claims.” (internal quotation marks omitted)).
Under Wyo. Stat. Ann. § 7-14-103(a)(i), a claim “is proeedurally barred” if it “[cjould have been raised but was not raised in a direct appeal from the proceeding which resulted in the petitioner’s conviction.” As discussed supra, Mr. Rawle neglected to raise his ineffective-assistance-of-trial-counsel claim on direct appeal. The state court subsequently held in post-conviction proceedings that this claim was proeedurally barred.
Mr. Rawle does not contest on appeal the district court’s determination that his ineffective-assistance claim is proeedurally barred on an independent and adequate state-law ground.2 Instead, he attempts to *772qvercome this procedural bar by demonstrating “cause and prejudice” to excuse his default. To demonstrate cause, a petitioner must show “that some objective factor external to the defense impeded counsel’s efforts” to raise the claim in state court.3 Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2689, 91 L.Ed.2d 397 (1986); accord Coronado v. Ward, 517 F.3d 1212, 1215 (10th Cir.2008), Mr. Rawle argued cause and prejudice in the district court. Although the court did not expressly address this argument, the court effectively rejected it in dismissing his ineffective-assistance-of-trial-counsel claim as procedurally barred. We conclude that reasonable jurists could not debate the correctness of the court’s ultimate disposition of this claim.
Specifically, we conclude that Mr. Rawle has abandoned the cause argument that he raised in the district court and waived the cause argument that he now presents to us. Courts have found the existence of “cause” when the habeas petitioner had the same counsel at trial and on appeal. Hopkinson v. Shillinger, 866 F.2d 1185, 1204 n. 12 (10th Cir.1989), aff'd, 888 F.2d 1286 (10th Cir.1989) (en banc), overruled on other grounds by Sawyer v. Smith, 497 U.S. 227, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990). In the district court, Mr.. Rawle contended that he had the same trial and appellate counsel. However, he now concedes that “different attorneys handled the trial and direct appeal,” Aplt. Br. at 28. Consequently, Mr.. Rawle has abandoned the cause argument that he made in the district court.
Before us, Mr. Rawle’s argument for cause centers on the view that nothing in the cold trial record would have indicated to the appellate counsel that the trial counsel had not investigated the defendant’s mental deficiencies. See id. at 26 (“There is nothing in the cold record that would have alerted [appellate counsel] to this deficiency and the failure of [trial counsel] to investigate Rawle’s mental state.”). He therefore reasons that “trial counsel’s error in this case could only be discovered in post-conviction,” and not on direct appeal. Id.-, see id. at 28 (“[T]he first time it was even possible for Rawle to raise ineffectiveness of trial counsel was in his' state *773post-conviction petition.”). This argument was not. presented to the district court. Although Mr. Rawle similarly contended in the district court that trial counsel’s ineffectiveness could not be unearthed until post-conviction proceedings, that contention was expressly tied to Mr. Rawle’s argument that he had the same counsel at trial and on appeal. See Merits Br. of Petitioner at 6, Rawle v. Wyo. Dep’t of Corr. State Penitentiary Warden, No. 08-CV-196-D (D.Wyo. Nov. 9, 2008), ECF No. 25 (noting that trial counsel’s alleged ineffectiveness could not'be discovered until post-conviction proceedings, because it was only then that “new counsel was hired, independent of the Wyoming Public Defender System”). As noted, however, Mr. Rawle concedes here that he did not have the same counsel at trial and on direct appeal. Accordingly, Mr. Rawle’s argument before us is a new one, which he did not present to the district court. Absent a showing of extraordinary circumstances, we deem this argument to be waived. See, e.g., Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1143 (10th Cir.2009) (“Absent extraordinary circumstances, we will not consider arguments raised for the first time on appeal.”); Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 722 (10th Cir.1993) (“[W]e have consistently turned down the argument that the raising of a related theory was sufficient.”).4
In sum, Mr. Rawle’s arguments fail to demonstrate “cause” for the procedural default in Wyoming state court of his ineffective-assistance-of-trial-counsel claim. Therefore, we conclude that reasonable jurists could not debate the correctness of the district court’s resolution of Mr. Rawle’s ineffective-assistance-of-trial-counsel claim — viz., the court decision to dismiss the claim as procedurally barred.
II. Ineffective Assistance of Trial Counsel
Mr. Rawle contends that he was deprived of his constitutional right to the effective assistance of trial counsel because his attorney failed to investigate his mental deficiencies and to advise him properly regarding the plea agreement. We reach the merits of this ineffective-assistance-of-counsel claim only in the absence of a procedural bar. Hawkins v. Mullin, 291 F.3d 658, 670 (10th Cir.2002). Because Mr. Rawle fails to overcome the procedural bar, we do not reach the merits of this claim.
*774CONCLUSION
For the foregoing reasons, we DENY Mr. Rawle’s application for a COA and DISMISS his appeal.
This Order is not binding' precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consis- • tent with Federal Rule of Appellate Procedure 32.1 and Tendí Circuit Rule 32.1. After examining the briefs and the appellate record, this three-judge panel determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
. Wyo. Stat. Ann. § 7-14-103 provides, in pertinent part, as follows:
(a) A claim under [Wyo. Stat. Ann. § 7-14-101 through § 7-14-108] is procedurally barred and no court has jurisdiction to decide the claim if the claim:
(i) Could have been raised but was not raised in a direct appeal from the proceeding which resulted in the petitioner’s conviction;
(b) Notwithstanding paragraph (a)(i) of this section, a court may hear a petition if:
(i) The petitioner sets forth facts supported by affidavits or other credible evidence which was not known or reasonably available to him at the time of a direct appeal; or
(ii) The court makes a finding that the petitioner was denied constitutionally effective assistance of counsel on his direct appeal.
. Before the district court, Mr. Rawle asserted that Wyo. Stat. Ann. § 7-14-103 is not an adequate state procedural ground. However, we need not address this issue on appeal because Mr. Rawle failed to raise it in his opening brief. Fed. R.App. P. 28(a)(9)(A) (requiring an appellant's opening brief to identify "appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies”); Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir.2007) ("[W]e routinely have declined to consider arguments that are not *772raised, or are inadequately presented, in an appellant's opening brief.”). At one point in his brief, Mr. Rawle does state generally that he "is not procedurally defaulted.” Aplt. Br. at 28. However, Mr. Rawle never disputes that Wyo. Stat. Ann. § 7-14-103(a)(i) provides an independent and adequate state-law ground, which may effect a procedural default. Rather, his argument on appeal is focused on avoiding his procedural default by establishing cause and prejudice.
. Mr. Rawle applies the incorrect legal standard to demonstrate "cause and prejudice.” In particular, Mr. Rawle applies the framework for determining whether a state procedural bar to an ineffective-assistance-of-counsel claim is adequate for purposes of federal habeas review. Aplt. Br. at 28 (quoting Osborn v. Shillinger, 861 F.2d 612, 623 (10th Cir.1988)). Mr. Rawle, however, does not challenge the adequacy of Wyoming's procedural bar in his- opening brief; accordingly, the challenge is waived. See supra note 2. Under the adequacy analysis, the "procedural bar will apply only in those limited cases meeting the following two conditions: trial and appellate counsel differ; and the ineffectiveness claim can be resolved upon the trial record alone.” Young v. Sirmons, 551 F.3d 942, 956 (10th Cir.2008) (internal quotation marks omitted) (brackets omitted) (analyzing the procedural bar in a case involving an Oklahoma statute that is analogous to the Wyoming statute), cert. denied, -U.S.-, 130 S.Ct. 272, 175 L.Ed.2d 183 (2009); accord Osborn, 861 F.2d at 623 (applying this framework to the Wyoming statute). Because this legal standard governs whether a state procedural law is "adequate,” see Fairchild, 579 F.3d at 1142-43; Coronado, 517 F.3d at 1215, and not whether there is cause for excusing any default under that state law, Mr. Rawle’s reliance on this standard is misguided.
. This is the only cause argument that Mr. Rawle advances on appeal. Mr. Rawle is represented by counsel; therefore, his appellate filings are not entitled to "the mandated liberal construction afforded to pro se pleadings.” Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir.1999). Even if he were proceeding pro se, it would not be appropriate for us to "assume the role of advocate” for Mr.-Rawle and put forward arguments that he does not. Id. (internal quotation marks omitted); accord United States v. Pinson, 584 F.3d 972, 975 (10th Cir.2009) ("[B]ecause Pinson appears pro se, we must construe his arguments liberally; this rule of liberal construction stops, however, at the point at which wé begin to serve as his advocate.”). We note, however, that courts have determined that cause exists when the habeas petitioner alleges that his appellate counsel was constitutionally ineffective, see Murray, 477 U.S. at 489-90, 106 S.Ct. 2639; Banks v. Reynolds, 54 F.3d 1508, 1514-15 (10th Cir.1995). Yet Mr. Rawle abandoned his ineffective-assistance-of-appellate-counsel argument before the district court. Specifically, he disclaimed any intention of pursuing a claim that appellate counsel was ineffective for failing to raise on appeal an ineffective-assistance-of-trial-counsel claim. See Aplt.App. at 146 ("[W]e’re not alleging ineffective -assistance of appellate counsel.”); id. at 183 (agreeing that the ineffective-assistance-of-appellate-counsel claim has no merit). Therefore, he cannot avail himself of that basis for cause. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480499/ | PER CURIAM:
Michelle Jones appeals the denial and termination of long-term disability benefits by Connecticut General Life Insurance Company (“CIGNA”). In granting CIG-NA’s motion for summary judgment, the district judge, adopting the magistrate judge’s report and recommendation, found that the denial of long-term disability benefits was not arbitrary and capricious. The district court concluded that CIGNA did not ignore any of the medical evidence presented by Jones in her original claim or *873in her subsequent appeals to CIGNA. Further, the district court found that the basis for CIGNA’s decision to deny long-term disability benefits was not arbitrary and capricious.
We have carefully reviewed the briefs and the record, and after de novo review, which included the benefit of oral argument, we find that the district court properly granted summary judgment to CIG-NA. We therefore affirm the judgment of the district court.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480500/ | PER CURIAM:
Howard C. Anderson, appointed counsel for Juan Gilberto Vela, has moved to withdraw from further representation of the appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record reveals that counsel’s assessment of the relative merit of the appeal is correct. Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and Vela’s convictions and sentences are AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480501/ | ON MOTION
ORDER
Camtek Ltd. submits a motion seeking a stay, pending appeal, of paragraph 5(a) of the permanent injunction entered by the United States District Court for the District of Minnesota on August 28, 2009 or, in the alternative, modification of the language of paragraph 5(a).
Upon consideration thereof,
It Is Ordered That:
(1) August Technology Corporation et al. (August Technology) are directed to respond no later than August 18, 2010.
(2) The district court’s August 28, 2009 order is temporarily stayed to the extent that it enjoins offers to sell where the sale would be completed outside the United States, pending receipt of August Technology’s response and consideration by the court of the papers. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480502/ | ON MOTION
ORDER
The DIRECTV Group, Inc. moves to strike the joint appendix. Acacia Media Technologies Corporation opposes. DIRECTV replies.
Upon consideration thereof,
It Is Ordered That:
The motion is granted. Acacia is directed to file a replacement appendix in compliance with Fed. R.App. P. 30 and Fed. Cir. R. 30 within 7 days of the date of filing of this order. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480504/ | ON MOTION
ORDER
Saint-Gobain Abrasives, Inc., Hebei Ji-kai Industrial Group Co., Ltd. et al., Ehwa Diamond Industrial Co., Ltd., and Bosun Tools Group Co., Ltd. (movants) move jointly to expedite consideration of this appeal or, in the alternative, for a stay of “all administrative proceedings related to the administrative reviews of the anti-dumping orders on diamond sawblades from China and Korea.” The movants state that Diamond Sawblades Manufacturers Coalition and the United States oppose.
Upon consideration thereof,
It Is Ordered That:
*996(1) The motion to expedite is granted to the extent that the appeal will be placed on the October 2010 calendar.
(2) The alternative motion for a stay is moot. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480505/ | *2
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed April 14, 2010, be affirmed, as appellant’s complaint against the United States is factually and legally frivolous. See, e.g., Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992); Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
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/8480506/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed April 12, 2010, be affirmed in light of the immunity and other considerations cited by the district court, see, e.g., Sindram v. Suda, 986 F.2d 1459 (D.C.Cir.1993); In re Marin, 956 F.2d 339 (D.C.Cir.1992) (per curiam), and because appellant’s claim of a racially-motivated conspiracy is frivolous.
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/8480507/ | SUMMARY ORDER
Plaintiff Brian Platt brought this action against the Incorporated Village of Southampton and several of its officials (jointly, “defendants”) alleging, among other things, discrimination and retaliation in violation of (1) his rights to free speech, equal protection of the laws and due process of law under the United States Constitution pursuant to 42 U.S.C. § 1983; the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12112(b) and 12203(a); and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. The District Court granted defendants’s motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Platt filed a timely appeal of that order. We assume the parties’ familiarity with the facts, procedural history and issues raised on appeal.
We review de novo a District Court’s dismissal for failure to state a claim, see Fed.R.Civ.P. 12(b)(6), assuming all well-pleaded, nonconclusory factual allegations in the complaint to be true, see Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009); Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir.2009).
A. Platt’s First Amendment Claim
Platt claims that defendants’ conduct, in response to his decision to report an allegedly improper relationship between then-Police Lt. William Wilson, Jr. and Seasonal Police Officer Kim McMahon, constituted retaliation in violation of his right to free speech under the First *64Amendment. The District Court concluded that because Platt discussed his concerns with Village Trustee Harald Steudte pursuant to his “official duties” as a police officer — and not in his private capacity as a citizen — his communication did not amount to protected speech under the First Amendment. We agree.
“[T]he First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). It is well established, however, that “a public employee speaking in his official capacity is not speaking as a citizen for First Amendment purposes,” Ruotolo v. City of New York, 514 F.3d 184, 189 (2d Cir.2008) (citing Garcetti, 547 U.S. at 421-22, 126 S.Ct. 1951). Indeed, “speech can be ‘pursuant to’ a public employee’s official job duties even though it is not required by, or included in, the employee’s job description, or in response to a request by the employer.” Weintraub v. Bd. of Educ., 593 F.3d 196, 203 (2d Cir.2010).
In this case, even read in the light most favorable to Platt, the record makes clear that, to the extent Platt’s conversation with Steudte raised issues of public concern, those issues related solely to his work as a police officer and the adverse impact of Lt. Wilson’s relationship with Officer McMahon on public safety concerns in Southampton. We cannot say that a police officer speaking to a public official about his concerns over public safety issues is speaking in his capacity as a citizen, as opposed to his capacity as a police officer.
B. Platt’s ADA and Title VII Claims
Platt argues the imposition of General Order 83 (“G083”) constitutes retaliation and discrimination in violation of the ADA and Title VII. The District Court concluded that because G083 did not constitute a “materially adverse action,” Platt’s claim falls short of establishing a prima facie case of retaliation or discrimination under the ADA, 42 U.S.C. §§ 12112(b) and 12203(a), or Title VII, 42 U.S.C. § 2000a1 Here, again, we agree.
“Actions are materially adverse if they are harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination [or retaliation].” Hicks v. Baines, 593 F.3d 159, 165 (2d Cir.2010) (internal quotation marks omitted). The mere fact that Platt brought the instant claim in spite of G083 does not, of course, suggest that the order could not have dissuaded a reasonable employee from bringing a claim under the ADA or Title VII. In this case, however, G083 was issued long after Platt went on medical leave and applied equally to all officers on leave of duty. We are unprepared to say that no generally applicable order could constitute “materially adverse action” against an employee. However, the requirement that all officers on leave regularly report to their supervisors and be available throughout the course of the day, while certainly an added inconvenience, does not constitute a materially adverse employment action against Platt.
C. Platt’s Fourteenth Amendment Claims
Platt also claims that G083 deprived him of his right to substantive due *65process and equal protection of the laws under the Fourteenth Amendment. These arguments are without merit. Platt has failed to allege a single instance in which G08S actually infringed his liberty interests. He asserts only that G088 assumes the power to do so. He cannot predicate a substantive due process claim on such speculation.
Even if Platt could allege a specific instance of personal hardship arising from the enforcement of G083, it is unlikely that it would rise to the sort of cognizable constitutional deprivation on which his claim must rest. We intimate no view as to whether G083 represents a sound policy judgment by the Southampton Police Department. We hold only that there is no question that “nothing in [G083] ‘shocks the conscience’ or suggests a ‘gross abuse of governmental authority.’ ” Kuck v. Danaher, 600 F.3d 159, 167 (2d Cir.2010) (quoting Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (forcing an emetic solution through a tube into a defendant’s stomach against his will in order to induce vomiting violated his right to substantive due process under the 14th Amendment), overruled on other grounds by Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir.1999)).
Platt’s equal protection claim is similarly baseless. G083 applied to all officers on leave. As a result, Platt has not, and cannot, allege that he was “treated differently than others similarly situated,” Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 58 (2d Cir.2010), as a result of G083. We conclude, therefore, substantially for the reasons stated by the District Court, see Platt v. Inc. Vill. of Southampton, No. 08-CV-2953 at 13-15, 2009 WL 3076099 (E.D.N.Y. Sept. 25, 2009), that Order 83 did not constitute a violation of Platt’s Fourteenth Amendment right to equal protection of the laws.
D. Platt’s Section 1983 Claims
Platt claims that certain of the defendants are liable in their individual capacities under 42 U.S.C. § 1983 for failing to respond to a grievance letter he sent regarding G083 the day after G083 was amended. This argument is without merit.
Under Section 1983, liability can only be imposed against defendants in their individual capacities for “personal involvement ... in alleged constitutional deprivations.” Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir.2004) (internal quotation marks omitted). “[D]irect participation is not always necessary” to establish liability. AlJundi v. Estate of Rockefeller, 885 F.2d 1060, 1066 (2d Cir.1989). “[A] supervisory official may be personally liable if he or she has actual or constructive notice of unconstitutional practices and demonstrates gross negligence or deliberate indifference by failing to act.” Id. (internal quotation marks omitted); see also Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (“[S]upervisory liability may be imposed where an official demonstrates gross negligence or deliberate indifference to ... constitutional rights ... by failing to act on information indicating that unconstitutional practices are taking place.” (internal quotation marks omitted) (emphasis added)). We cannot say, however, that an allegation that a supervisory official ignored a letter protesting past unconstitutional conduct is, without more, sufficient to state a claim that the official was “personally involved” in the unconstitutional conduct.
E. Platt’s Claim for Injunctive Relief
Platt demands that we enjoin defendants from enforcing G083, arguing *66that, despite the fact that he has retired from the Southampton police force and is therefore no longer subject to G083, this claim “is not moot because [defendants’] unlawful activity is capable of repetition, yet evades review.” This claim is clearly baseless. It is well-settled that “[a] plaintiff seeking injunctive or declaratory relief cannot rely on past injury to satisfy the injury requirement but must show a likelihood that he or she will be injured in the future.” Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 344 (2d Cir.1998). Having retired, there is no chance that Platt will ever again be required to abide by departmental orders regarding leave policy, including G083. Accordingly, his claim for injunctive relief was properly denied.
F. Leave to Amend
Finally, Platt claims the District Court erred in denying his cross-motion to amend his complaint. Pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure, “[a] court should freely give leave [to amend] when justice so requires.” We review a District Court’s denial of leave to amend for abuse of discretion. See, e.g., McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200-01 (2d Cir.2007); cf. Sims v. Blot, 534 F.3d 117, 132 (2d Cir.2008) (“A district court has abused its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located within the range of permissible decisions.” (internal citations, alterations, and quotation marks omitted)). “Generally, a district court has discretion to deny leave [to amend] for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party.” Holmes v. Grubman, 568 F.3d 329, 334 (2d Cir.2009) (internal quotation marks and alterations omitted). Where, as here, the proposed amended complaint fails to cure the original complaint’s deficiencies, leave to amend was properly denied. Carpenter v. Republic of Chile, 610 F.3d 776, 781 (2d Cir.2010).
CONCLUSION
We have considered each of Platt’s arguments on appeal and find them to be without merit. For the reasons stated above, we AFFIRM the judgment of the District Court.
. We analyze retaliation and discrimination claims under the ADA and Title VII under the same burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 223 (2d Cir.2001). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480508/ | OPINION
PER CURIAM.
Lead petitioner Nancy Herrera, a native and citizen of Colombia, petitions for review of an order by the Board of Immigration Appeals (“BIA”) affirming an immigration judge’s order denying her application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).1 For the following reasons, the petition for review will be denied.
I.
Herrera’s applications for asylum, withholding of removal, and protection under the CAT are predicated on her claim that she was threatened by guerillas in Colombia on account of her involvement with the “Partido Conservativo” (the Conservative Party) in Colombia and has a well-founded fear of persecution if returned. She testified that as an active party member she spent time handing out food, clothing, and books in rural communities, and recruiting new members to the party. (AR 156.) Around May 2000, Herrera started receiving threatening phone calls from anonymous sources she believed to be guerillas, *159causing her to quit her party activities. (AR 157-58, 177.) In November 2000, she received a “sufragio” — a written death threat stating that her “turn” was coming. (ÁR 158.) In March 2001 she received another threat in the form of a Tarot card depicting death left on her desk. (AR 160.) In August 2001, her purse was stolen from her office. Herrera testified that initially she thought this was a common crime and reported it to police, but became convinced that guerillas were responsible when she later received an anonymous phone call in which the speaker told her they had all of her identification and had her “in [their] hands.” (AR 161.) During this period Herrera became increasingly distraught and depressed, experienced vaginal hemorrhaging, and was ultimately hospitalized to have a cyst removed from her uterus. (AR 161.) She attributed this episode to stress and fear from the threats and decided to flee to the United States. (AR 162.)
The IJ denied relief on the grounds that Herrera’s testimony was not credible and that she did not meet her burden of proving past persecution or a well-founded fear of future persecution. The BIA dismissed Herrera’s appeal without addressing the IJ’s adverse credibility determination, concluding that Herrera had failed to establish eligibility for asylum on the merits. The BIA also concluded that Herrera did not carry her burden of proving her entitlement to withholding of removal, or relief under CAT. This appeal followed.
II.
We have jurisdiction to review final orders of removal. 8 U.S.C. § 1252(a)(1). 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). The BIA’s factual findings are reviewed for substantial evidence and must be treated as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Sioe Tjen Wong v. Att’y Gen., 539 F.3d 225, 230 (3d Cir.2008) (citations omitted). The BIA’s conclusions of law are subject to plenary review. See id. at 231. BIA determinations as to whether the burden of proof was met will be upheld if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). The Court will reverse only if the evidence not only supports a contrary conclusion, but compels it. Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir.2004). In reviewing the BIA’s decision, this Court must assume Herrera’s credibility because the BIA neither adopted the IJ’s adverse credibility determination nor made one of its own. See Kayembe v. Ashcroft, 334 F.3d 231, 234-35 (3d Cir.2003).
III.
The BIA agreed with the IJ that the record was insufficient to support a finding of past persecution or a well-founded fear of future persecution on account of a protected ground. The evidence in this case does not compel a contrary conclusion. The BIA explained that because Herrera was never physically threatened or harmed while in Colombia, and had received no specific threat of harm if she returned, she failed to meet her burden of establishing past persecution or a well-founded fear of future persecution. This conclusion is “grounded in the record” and consistent with cases holding that asylum may be denied where threats “failed to *160result in any physical violence or harm to the alien.” Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006); see also Li v. Att’y Gen., 400 F.3d 157 (3d Cir.2005) (“unfulfilled threats” of physical mistreatment not concrete or imminent enough to constitute past persecution). Moreover, although Herrera believed the threats were from guerillas, she was not able to establish who the threats were from, and thus that they came from an individual that the government of Colombia was “unable or unwilling to control.” Myat Thu v. Att’y Gen., 510 F.3d 405, 413 (3d Cir.2007) (internal quotations and citations omitted). The BIA also noted that Herrera returned to Colombia from the United States on two occasions after the threats began in 2000. Given that testimony, the BIA did not err in concluding that Herrera failed to establish a reasonable fear of future harm in Colombia. See Jean v. Gonzales, 461 F.3d 87, 91 (1st Cir.2006) (“[Petitioner’s] willingness to return voluntarily to Haiti on multiple occasions undermines the contention that Jean experienced persecution and has a well-founded fear of persecution there.”).
IV.
Because substantial evidence supported the BIA’s decision to deny Herrera’s application for asylum, it follows that the denial of her application for withholding of removal was also supported by substantial evidence. Accordingly, we will deny the petition for review.
. Herrera’s husband and daughter, Hernando and Estefania Villegas, respectively, are also citizens of Colombia and are included in her application for asylum and withholding of removal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480509/ | OPINION
PER CURIAM.
Edgar Rosendo Garrido petitions for review of the Board of Immigration Appeals’ (“BIA”) final order of removal. We will deny the petition.
I.
Garrido is a citizen of Guatemala who entered the United States in 1994. He initially applied for asylum on the grounds that he feared persecution by guerilla forces who were trying to recruit him during Guatemala’s civil war. His application was not decided, for reasons not disclosed *221by the record, and the civil war ended in 1996.
Garrido remained in this country. In 2007, the Government served him with a notice to appear charging him as removable for being present without having been admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). Garrido concedes the charge, but he filed an amended application seeking asylum, statutory withholding of removal, and relief under the Convention Against Torture (“CAT”). Garrido now fears that he will be targeted by criminal elements, particularly gangs known as the “maras,” if he returns to Guatemala.
The Immigration Judge (“IJ”) held a hearing, at which Garrido testified and presented the 1997 and 2007 Department of State country reports. The IJ found Garrido credible and sympathetic, but denied relief. In particular, the IJ concluded that Garrido is not eligible for asylum because he presented no evidence that he suffered past persecution or has a well-founded fear of being targeted for violence on a statutorily protected ground. The IJ also concluded that Garrido is not entitled to withholding of removal because he necessarily failed to satisfy the higher burden applicable to that claim and is not entitled to relief under CAT because he presented no evidence that he is likely to be tortured on return. The BIA dismissed Garrido’s resultant appeal by decision and order issued October 7, 2009, essentially summarizing the IJ’s reasoning. Garrido petitions for review.1
II.
Garrido has raised no issue regarding the denial of his CAT claim, so any such issue is waived. See Alaka v. Att’y Gen., 456 F.3d 88, 94 (3d Cir.2006). Instead, he raises three arguments addressed to his claims for asylum and withholding of removal. Each of them lacks merit.
First, Garrido argues that the IJ applied the wrong legal standard in adjudicating his withholding claim.2 An alien seeking withholding of removal must show a “ ‘clear probability’ ” that he or she will be persecuted if removed to a particular country, meaning that persecution there is “ ‘more likely than not.’ ” Sioe Tjen Wong v. Att’y Gen., 539 F.3d 225, 236 (3d Cir.2008) (citation omitted). Garrido argues that the IJ required him instead to present “clear and convincing evidence” that he will be persecuted. As the Government argues, however, Garrido did not exhaust this claim by presenting it to the BIA (A.R.9-13), so we lack jurisdiction to address it. See Lin v. Att’y Gen., 543 F.3d 114, 120 (3d Cir .2008); 8 U.S.C. § 1252(d)(1). In addition, we note that *222both the IJ and the BIA expressly set forth the correct standard.3
Second, in two separate but related arguments, Garrido argues that IJ did not properly take into account the 2008 country report, which he claims describes an “utter breakdown” in the Guatemalan government’s ability to protect its citizens from crime that “corroborates the petitioner’s concern for his safety.”4 As both the IJ and BIA properly concluded, however, the country reports describe only generalized violence and criminal activity and do not suggest that Garrido will be targeted for persecution on any protected ground. See Konan v. Att’y Gen., 432 F.3d 497, 506 (3d Cir.2005) (“[G]eneral conditions of civil unrest or chronic violence and lawlessness do not support asylum.”). Nor did Garrido submit any other evidence on that point. To the contrary, although he testified that he fears crime and violence in Guatemala in general, he acknowledged that he had no information that specific gangs would target him personally. (A.R.126-28, ISO-31.) Thus, the BIA’s rejection of his claims is supported by substantial evidence.
Finally, Garrido asserts at the conclusion of his brief that his due process rights were “compromised” because he did not receive a timely interview on his initial asylum application, in which he sought asylum on the basis of guerilla recruitment during Guatemala’s former civil war.5 Garrido has not meaningfully developed this argument, and his assertion — without the benefit of citation to authority or the record — is the kind of “‘passing reference’ ” that is inadequate to raise an issue on review. United States v. Hoffecker, 530 F.3d 137, 162 (3d Cir.2008) (citation omit.ted). Nevertheless, we perceive no error in this regard. Aliens do not have a due process right to prompt adjudication of asylum applications. See Mudric v. Att’y Gen., 469 F.3d 94, 98 (3d Cir.2006) (rejecting due process claim that country conditions changed during delay in processing asylum application). And Garrido himself acknowledges that “[wjhether there would have been a different result in the asylum process is mere speculation[.]” (Petr.’s Br. at 8.)
Accordingly, we will deny the petition for review.
. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). We may review the decisions of both the IJ and BIA because the BIA essentially summarized and deferred to the IJ’s more detailed discussion. See Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). Garri-do argues that we should review only the IJ’s decision because the BIA's decision is not a "real opinion” and "merely reflects the judgment of the” IJ. We disagree, but we note that our rulings would be the same whether we reviewed the IJ’s decision, the BIA’s decision, or both. We review the Agency’s factual findings for substantial evidence, and may not disturb them " ‘unless any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Sandie v. Att’y Gen., 562 F.3d 246, 251 (3d Cir.2009) (quoting 8 U.S.C. § 1252(b)(4)). We review legal conclusions de novo. See id.
. The caption of this argument asserts that the IJ applied the wrong standard to Garri-do’s asylum claim, but the body of the argument is addressed only to his withholding claim. Our conclusions apply equally to the asylum claim as well.
.In setting forth the standard for asylum, the BIA wrote that Garrido was required to show that a statutorily protected ground was "at least one central reason” for the alleged persecution. 8 U.S.C. § 1158(b)(l)(B)(i). The Government concedes that this standard does not apply to Garrido because it was established by the REAL ID Act and Garrido filed his initial asylum application (though not his amended application) before its effective date. We need not resolve that issue because Garri-do has not raised it on review (and, to the contrary, argues that we should not review the BIA’s decision at all). Moreover, as the Government notes, the BIA did not base its ruling on the “one central reason” requirement.
. Garrido actually submitted the 2007 report to the IJ. The 2008 report issued after the IJ rendered his decision, and Garrido then submitted it to the BIA on appeal. The two reports do not differ materially in any relevant respect. (A.R. 18-31, 143-59.)
. Garrido conceded before the IJ that his fear of guerrillas during Guatemala’s former civil war no longer states a potential basis for relief (A.R. 126, 134), and he does not argue otherwise on review. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480510/ | *224OPINION
PER CURIAM.
Petitioners Yanping Weng and Qimou Lin, a wife and husband from China, seek review of the Board of Immigration Appeals’ (“BIA”) decision upholding the Immigration Judge’s (“IJ”) order of removal. For the following reasons, we will deny the petition for review.
I
Weng and Lin, Chinese citizens from Fujian Province, met and married in the United States; they have two United States citizen daughters. In 2007, Weng submitted an asylum application to the Department of Homeland Security, with Lin as a derivative applicant. The application was denied and the petitioners were placed in removal proceedings because they had overstayed their visas.
Before the IJ, Weng and Lin conceded removability, but renewed their applications for asylum and also sought withholding of removal and relief under the Convention Against Torture. As grounds for relief, Weng and Lin argued that they feared sterilization and severe economic sanctions upon their return to China for violating the one-child family planning law. Among other evidence, the petitioners submitted: articles indicating that Chinese women who gave birth in Taiwan and Japan were reportedly subjected to forced sterilization procedures when they returned to China; an unauthenticated document dated March 2008 — purportedly issued by Weng’s hometown Birth Control Office — explaining Fujian Province’s birth control policies; and the 2007 State Department profile on country conditions in China. They also testified that they may have to pay a fine in excess of 30,000 RMB, which the IJ noted amounts to roughly $5000.
The IJ denied relief. As to the sterilization claim, the IJ reasoned that Weng and Lin provided insufficient evidence to demonstrate that Chinese citizens who have two or more children in the United States face sterilization if they return to China. As to the economic persecution claim, the IJ found Weng and Lin to be incredible based on their inconsistent testimony regarding their income and ability to pay any fine they may incur. Alternatively, the IJ reasoned that even if Weng and Lin were credible, they did not demonstrate that any fine they may have to pay would rise to the level of persecution. On appeal, the BIA upheld the IJ’s decision on all grounds. This petition for review followed.
II
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). 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 deferred to or adopted the IJ’s reasoning. See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). We review the Agency’s factual determinations for substantial evidence, and will uphold such determinations unless any reasonable adjudicator would be compelled to reach a contrary conclusion. See Fiadjoe v. Att’y Gen., 411 F.3d 135, 153 (3d Cir.2005).
At the outset, we note that the petitioners do not argue in their opening brief that the adverse credibility determination was erroneous. Therefore, any such challenge is waived. See Laborers’ Int’l Union of N. Am., AFL-CIO v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir.1994). Rather, the petitioners argue that the IJ and BIA erred in concluding that they failed to demonstrate a well-founded fear of sterili*225zation or economic persecution for violating China’s one-child policy.
As to their claim regarding forced sterilization, the thrust of the petitioners’ argument is that the IJ weighed the evidence inappropriately, and should have given more weight to the unauthenticated Birth Control Office letter and background materials, such as the articles suggesting that Chinese women who give birth in Taiwan and Japan are forcibly sterilized if they return to China. We have repeatedly recognized that State Department reports may constitute substantial evidence, see, e.g., Yu v. Att’y Gen., 513 F.3d 346, 349 (3d Cir.2008), and have held that the 2007 State Department profile, in particular, indicates that there is no evidence to suggest that overseas Chinese returnees are subject to forced sterilization for giving birth to two children abroad. See Liu v. Att’y Gen., 555 F.3d 145, 149-50 (3d Cir.2009). The unauthenticated Birth Control Office letter and unverified news reports do not compel us to reach a different conclusion.
Likewise, we agree with the Agency’s determination that Weng and Lin failed to demonstrate a well-founded fear of economic persecution. To rise to the level of persecution, an economic sanction must impose a severe economic disadvantage that threatens a person’s life or freedom. See Li, 400 F.3d at 168-69. We agree with the Agency that there is insufficient evidence that any fine Weng and Lin may face would rise to that level.
Because Weng and Lin were ineligible for asylum, we also agree that they were unable to meet the higher standard applicable to applications for withholding of removal. See Sioe Tjen Wong v. Att’y Gen., 539 F.3d 225, 236-37 (3d Cir.2008). Nor did they demonstrate eligibility for CAT protection. See Kamara v. Att’y Gen., 420 F.3d 202, 212-13 (3d Cir.2005).
Accordingly, we will deny the petition for review. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480512/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Paul Scinto, Sr., 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. Scinto v. Preston, No. 4:03-cv-00178-H (E.D.N.C. May 28 & Dec. 11, 2009). We grant Scin-to’s motion to exceed length limitations for his informal brief. 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/8480513/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terrence Moody appeals the district court’s order denying his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See United States v. Moody, No. 1:06-cr-00074-WDQ-9 (D.Md. May 21, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480514/ | 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 summarily dismiss her complaint, pursuant to 28 U.S.C. § 1915 (2006), 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, we deny Assa’ad-Faltas’s motions for appointment of counsel and to place the appeal in abeyance and affirm the district court’s orders. See Assa’ad-Faltas v. South Carolina Supreme Court, No. 3:09-cv-00507-TLW (D.S.C. filed July 22, 2009, entered July 23, 2009; Aug. 24, 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/8480515/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Monty Marshall appeals the district court’s orders granting in part the Government’s Fed.R.Crim.P. 35(b) motion and denying Marshall’s motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Marshall, No. 4:02-cr-b0002-RGD-TEM-1 (E.D. Va. Nov. 19 & Dec. 8, 2009). In addition, we find most of Marshall’s claims waived due to his failure to timely raise them in district court. See Muth v. United States, 1 F.3d 246, 250 (4th Cir.1993); Holland v. Big River Minerals Corp., 181 F.3d 597, 605 (4th Cir.1999). We grant Marshall’s motions to seal his informal brief and supplemental informal brief. 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/8480517/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dion Saulter appeals the district court’s order denying his 18 U.S.C. § 3582 (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. Saulter, No. 7:02-cr-00022-BO-2 (E.D.N.C. filed Nov. 20, 2009; entered Nov. 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/8480518/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Andrew Stewart appeals the judgment entered by the district court affirming the Commissioner’s decision to deny a period *295of disability, disability insurance benefits, and supplemental social security income.* We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the magistrate judge. See Stewart v. Astrue, No. 9:08-cv-08600-BM (D.S.C. 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.
The patties consented to the exercise of the district court’s jurisdiction by a magistrate judge, as permitted by 28 U.S.C. § 636(c) (2006). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480519/ | PER CURIAM:**
This is an appeal from the district court’s denial of a preliminary injunction. Appellant Terrance Patrick Esfeller sought preliminary and permanent injunc-tive relief, enjoining the enforcement of the Louisiana State University (“LSU” or the “University”) Code of Conduct (the “Code”).
I
In 2006, Esfeller, at the time an LSU student, was charged by the LSU Office of Judicial Affairs with four non-academic misconduct violations:
(1) extreme, outrageous or persistent acts, or communications that are intended or reasonably likely to harass, intimidate, harm, or humiliate another;
(2) committing an act or attempting to commit an act on campus that would be in violation of city, parish, state, or federal law;
(3) attempting to commit or assisting with the commission or attempted commission of any of the foregoing listed offenses; and
(4) violating any rule and/or regulation of the University, including, but not limited to, administrative rules of campus offices.
The charges arose from a dispute between Esfeller and his former girlfriend, who filed a complaint with LSU campus police. Esfeller allegedly persistently harassed and threatened his ex-girlfriend through email and social networking sites, such as MySpace and Facebook, and physically confronted her. She asked Esfeller to stop but Esfeller persisted. After her complaint, the LSU police prepared a report detailing the incidents; however, Es-feller’s ex-girlfriend decided not to press charges. Esfeller was served with notice of the violations, which apparently spurred him to escalate the harassment by threatening to begin his own investigation into her conduct, threatening her scholarship status, and threatening her reputation. Esfeller also threatened to post unflattering emails about her and to contact the father of her child to incite a custody battle.
Esfeller met with a dean regarding the charged violations. The dean conducted an investigation and found Esfeller to be in violation of the Code. Esfeller was offered *339a one-year disciplinary probation term and enrollment in an anger management course. He rejected the proposed sanctions and requested a second investigation into the matter. A second dean investigated; she, too, found Esfeller in violation of the Code and offered the same sanctions. Esfeller again rejected the sanctions and told the dean that he was aware that another student with similar violations was given a disciplinary warning for one semester. The second dean offered to match that sanction, along with completion of an anger management court. Esfeller again rejected the sanctions and asked for a panel hearing.
Between April and July 2007, LSU repeatedly tried to schedule a panel hearing but had to reschedule a number of times due to Esfeller’s schedule, the availability of the complaining witness, and the availability of panel members. The hearing was finally scheduled for July 27, 2007 and three notices were sent to Esfeller, in which he was informed that he would be able to present witnesses and documentary evidence. At the close of business the evening before the hearing, Esfeller informed LSU that he would not be able to attend because of work obligations. LSU proceeded with the hearing, and although Esfeller was absent and his attorney was not permitted to participate in or observe the hearing, the panel heard from Esfel-ler’s designated witnesses and reviewed documentary evidence that he submitted. The panel unanimously found Esfeller in violation of the Code. Esfeller appealed the panel’s decision to LSU’s Vice Chancellor who denied the appeal. Esfeller then sought review by LSU’s then-Chaneellor Sean O’Keefe, who denied the appeal.
Esfeller filed suit in the district court against O’Keefe, in his official capacity, and LSU’s Board of Supervisors (the “Board”), alleging violations of 42 U.S.C. §§ 1983 and 1988, the First, Fifth, Sixth, and Fourteenth Amendments of the Constitution, and the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232g.1 Esfeller alleged that the LSU Code is facially and as-applied over-broad and vague. He also asserted that LSU deprived him of procedural due process in violation of the Fourteenth Amendment by failing to provide sufficient notice and an opportunity to be heard in the disciplinary proceeding. He sought preliminary and permanent injunctive relief invalidating and restraining enforcement of the Code and “enjoining defendants from enforcing the disciplinary punishment levied against [him]” by the University hearing panel. The district court denied preliminary injunctive relief, finding that Esfeller was unlikely to succeed on the merits of either claim.
II
We briefly address whether Esfeller meets the requirements for Article III jurisdiction. Tex. Office of Pub. Util. Counsel v. FCC, 183 F.3d 393, 413 n. 16 (5th Cir.1999). He is no longer a student at LSU, having been expelled because of a low grade-point average. Further, he has no plans to return to LSU. Mootness goes to the heart of the court’s Article III jurisdiction. A case becomes moot if: “(1) there is no reasonable expectation that the *340alleged violation will recur and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Id. at 413-14. Standing alone, Esfeller’s request for injunctive relief invalidating the offending Code provision is moot. Where a student is no longer enrolled in the school whose policies he is challenging, there is no case or controversy sufficient to support prospective in-junctive relief. See Ward v. Santa Fe Indep. Sch. Dist., 393 F.3d 599, 606 (5th Cir.2004); Hole v. Tex. A & M Univ., No. 04-CV-175, 2009 U.S. Dist. LEXIS 123291, at *20 (S.D.Tex. Feb. 10, 2009). Here, however, Esfeller received a disciplinary sanction, reflected on his academic record and he seeks to prevent the University from enforcing that punishment. Thus, there are collateral or future consequences sufficient to satisfy the case or controversy requirement. Cf. Kennedy v. MindPrint (In re ProEducation Int’l, Inc.), 587 F.3d 296, 299 n. 1 (5th Cir.2009) (holding that injury to attorney’s reputation stemming from disqualification order sufficed to confer Article III jurisdiction for appeal); see also Sullivan v. Houston Indep. Sch. Dist., 307 F.Supp. 1328, 1338 (S.D.Tex.1969). Although, absent the blemish on his academic record, Esfeller would not have a live controversy or standing to challenge the validity of the Code now that he is no longer subject to it, the sanction is an actual, concrete injury sufficient to satisfy Article III. See Fairchild v. Liberty Indep. Sch. Dist., 597 F.3d 747, 754 (5th Cir.2010). Thus, he can seek to invalidate the Code provisions and enjoin their application because, if successful, Es-feller will no longer be subject to the disciplinary sanction, which would be removed from his record.
III
This court reviews the denial of a preliminary injunction for abuse of discretion. Affiliated Prof'l Home Health Care Agency v. Shalala, 164 F.3d 282, 284 (5th Cir.1999) (per curiam). The district court’s findings of fact are reviewed for clear error, while conclusions of law are reviewed de novo. Id. at 284-85. A preliminary injunction “is an extraordinary and drastic remedy, not to be granted routinely, but only when the movant, by a clear showing, carries a burden of persuasion.” Black Fire Fighters Ass’n v. City of Dallas, 905 F.2d 63, 65 (5th Cir.1990) (per curiam). A preliminary injunction will issue if the movant establishes: “(1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that the grant of an injunction will not disserve the public interest.” Concerned Women for Am. Inc. v. Lafayette Cnty., 883 F.2d 32, 34 (5th Cir.1989).
IV
Esfeller’s overbreadth challenge attacks a single provision of the Code, prohibiting “extreme, outrageous or persistent acts, or communications that are intended or reasonably likely to harass, intimidate, harm, or humiliate another.”
Esfeller argues that the Code provision is facially unconstitutional.2 A “fa*341cial challenge to a [regulation] is ... the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the [regulation] would be valid.” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). We first consider “whether the [provision] reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail.” Fairchild, 597 F.3d at 755. The party challenging the statute must demonstrate “a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the [c]ourt before a statute will be struck down as facially overbroad.” Hersh, 553 F.3d at 762 (internal quotation marks omitted).
“A school need not tolerate student speech that is inconsistent with its ‘basic educational mission,’ even though the government could not censor similar speech outside the school.” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) (quoting Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986)). The highest level of scrutiny — applied to school regulations that are viewpoint-specific — requires the school to show that the expression would “substantially interfere with the work of the school or impinge upon the rights of other students.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 509, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Thus, for Esfeller’s facial challenge to succeed, the overbreadth must be “substantial in relation to the [provision’s] legitimate reach.” Hersh, 553 F.3d at 762.
Esfeller relies heavily on the Third Circuit’s decision in Saxe v. State College Area School District, 240 F.3d 200, 209 (3d Cir.2001). Although the Code provision at issue here is similar to the code found to be overbroad in Saxe, we find the provisions sufficiently distinguishable to conclude that Esfeller is unlikely to be able to show that the Code provision is unconstitutionally overbroad. Unlike the code at issue in Saxe, LSU’s Code is not explicitly viewpoint-based: it does not prohibit hostile, disruptive, or offensive speech or conduct based on “race, religion, color, national origin, gender, sexual orientation, disability, or other personal characteristics,” see id. at 202, which, even if highly offensive, may very well be at the core of protected speech. Second, although the LSU Code, like the Saxe code aims at speech or conduct that creates an intimidating, hostile, or offensive environment, the LSU Code requires that the expression be persistent, extreme or outrageous and “reasonably likely” to cause harassment or intimidation. Such a limitation excludes from the Code’s sweep speech or conduct that is merely offensive to someone. See Saxe, 240 F.3d at 217. These limitations direct the Code at speech that “intrudes upon ... the rights of other students” and is legitimately subject to regulation under Tinker.
Similarly, Esfeller cannot show that the provision is “impermissibly vague in all of its applications.” Fairchild, 597 F.3d at 756. In the school regulation context, this court has held that proscriptions need not be as precise as would be required in the criminal context. See Murray v. W. Baton Rouge Parish Sch. Bd., 472 F.2d 438, 442 (5th Cir.1973). This court found a criminal statute prohibiting certain acts that “intimidate,” “harass,” “coerce,” and “threaten” not to be unconstitutionally vague. See CISPES (Comm. in Solidarity with People of El Salvador) v. FBI, 770 F.2d 468, 475-76 (5th Cir.1985); see also United States v. Cassel, 408 F.3d 622, 635 (9th Cir.2005) (finding, in the criminal context, that the term “intimidate” was not uncon*342stitutionally vague where the statute limited the word by specifying the context in which the intimidation must occur and the effect it must have); United States v. Bowker, 372 F.3d 365, 383 (6th Cir.2004), vacated on other grounds, 543 U.S. 1182, 125 S.Ct. 1420, 161 L.Ed.2d 181 (2005) (finding, in the criminal context, that the words “threaten” and “harass” have generally accepted meanings that can be easily ascertained). Given the wider latitude in the context of school regulations than the criminal context, the district court did not abuse its discretion in determining that Esfeller was unlikely to succeed in showing unconstitutional vagueness.
V
Esfeller challenges the disciplinary proceedings as violating due process because he did not receive sufficient notice of the charges or an opportunity to be heard at the disciplinary hearing.
A student subject to school disciplinary proceedings is entitled to some procedural due process. Goss v. Lopez, 419 U.S. 565, 574, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). The student must be given notice of the charges against him, an explanation of what evidence exists against him, and “an opportunity to present his side of the story.” Id. at 581, 95 S.Ct. 729. The student is not entitled to the “opportunity to secure counsel, to confront and cross-examine witnesses supporting the charge, or to call his own witnesses to verify his version of the incident.” Id. at 583, 95 S.Ct. 729.
Regarding his claim that he did not receive sufficient notice of the charges, Es-feller did, in fact, receive written notice of the charges against him, including citation to the precise provisions of the LSU Code that he was charged with violating. He was apprised of the charges, in person, on at least two occasions when he met with LSU officials. He was given access to the Office of Judicial Affairs’ file regarding the charges. Accordingly, Esfeller would be highly unlikely to succeed on the merits of showing a lack of notice sufficient to violate due process.
Esfeller’s claim that he was not given an opportunity to be heard is slightly more troubling. Esfeller informed LSU that he could not be present at the panel disciplinary hearing due to work obligations. LSU nonetheless held the hearing in Esfeller’s absence and barred his attorney from observing or participating in the hearing. Although Esfeller argues that he was not given an opportunity to be heard, the fact is that he was heard on a number of occasions by different LSU officials. LSU spent nearly four months trying to schedule the hearing and finally selected a date in July 2007, during the summer break, when all witnesses would be available as well as panel members. Esfeller was provided three separate notices of the hearing date and time but failed to tell LSU until the close of business the day before the hearing that he could not attend. And, although Esfeller did not attend the panel hearing, he was heard on two subsequent occasions by officials with the power to overturn the panel ruling. See Sullivan v. Houston Indep. Sch. Dist., 475 F.2d 1071, 1077 (5th Cir.1973) (noting the well-settled principle that a procedural defect in an initial hearing can be cured by subsequent hearings).
As LSU points out, it is not clear that Esfeller was even required to be given the opportunity to be heard at the panel hearing. Goss requires “at least” an “opportunity to characterize [the] conduct and put it in ... the proper context.” Goss, 419 U.S. at 584, 95 S.Ct. 729. Esfeller does not dispute that he received at least that much process. Esfeller was not entitled to have counsel present, to cross-examine witnesses, or even to call his own wit*343nesses. Id. at 583, 95 S.Ct. 729. Nonetheless, the panel heard from witnesses designated by Esfeller and considered the documentary evidence that he submitted. These facts, coupled with the multiple other opportunities in which Esfeller exercised his right to be heard, support the district court’s determination that Esfeller was unlikely to succeed on the merits of showing a due process violation. Accordingly we find no abuse of discretion.
VI
For the foregoing reasons, we AFFIRM the district court’s order denying preliminary injunctive relief.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
. The district court granted the Board's motion to dismiss all claims against it. Esfeller does not appeal that dismissal. The district court also dismissed all monetary claims against O’Keefe, and all claims based on violations of the Fifth and Sixth Amendments and FERPA. Accordingly, the only remaining claims are for injunctive relief, attorneys’ fees and costs against O’Keefe in his official capacity, stemming from alleged violations of the First and Fourteenth Amendments.
. Although Esfeller nominally asserts an as-applied challenge, he wholly fails to identify the conduct or speech that he contends is protected, let alone argue how the Code impinged on his rights. Accordingly, Esfeller has waived any argument that the Code is unconstitutional as applied to him. See, e.g., Hersh v. United States ex rel. Mukasey, 553 F.3d 743, 762 n. 21 (5th Cir.2008). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480520/ | PER CURIAM:*
The attorney appointed to represent Jorge Gonzalez-Solis 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). Gonzalez-Solis has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous is*356sue 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/8480521/ | PER CURIAM:*
The Federal Public Defender appointed to represent Richard Aybal Bobadilla 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). Aybal Bobadilla 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/8480523/ | PER CURIAM:*
The Federal Public Defender appointed to represent Aurelio Reyes-Estrada has *359moved 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). Reyes-Estrada 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 *359published 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/8480524/ | PER CURIAM:*
The Federal Public Defender appointed to represent Carlos Manuel Manzanares 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). Manzanares 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/8480525/ | PER CURIAM:*
The Federal Public Defender appointed to represent Rafael Jimenez-Barron 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). Jimenez-Barron 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/8480527/ | PER CURIAM:*
The Federal Public Defender appointed to represent Ramiro Vargas 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). Vargas has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous is*362sue 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/8480528/ | PER CURIAM:*
The Federal Public Defender appointed to represent Jose Eduardo Lopez-Cardenas 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). Lopez-Cardenas 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 |
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