url stringlengths 56 59 | text stringlengths 3 913k | downloaded_timestamp stringclasses 1 value | created_timestamp stringlengths 10 10 |
|---|---|---|---|
https://www.courtlistener.com/api/rest/v3/opinions/8480529/ | PER CURIAM:*
The attorney appointed to represent Joseph Pierce 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). Pierce 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Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.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/8480561/ | *882ON PETITION FOR WRIT OF MANDAMUS
ORDER
Verizon Business Network Services Inc. et al. (Verizon) submit a petition for a writ of mandamus to direct the United States District Court for the Eastern District of Texas to vacate its March 23, 2010 and August 3, 2010 orders, and to direct transfer to the United States District Court for the Northern District of Texas, Dallas Division.
Upon consideration thereof,
It Is Ordered That:
Red River Fiber Optic Corporation is directed to respond no later than September 10, 2010. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480530/ | PER CURIAM:*
The Federal Public Defender appointed to represent Modesto Mendieta 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). Mendieta 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. Mendie-ta’s untimely motion for appointment of substitute counsel or alternatively for leave to proceed pro se 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Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.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/8480531/ | PER CURIAM:*
The Federal Public Defender appointed to represent Jose Efrain Cruz-Ramos has *365moved 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). Cruz-Ramos 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 *365published 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/8480532/ | PER CURIAM:*
The Federal Public Defender appointed to represent Luis Angel Reglado-Castillo (Reglado) 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). Regla-do 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/8480533/ | PER CURIAM:*
The attorney appointed to represent Roderick Maurice Evans 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). Evans has filed a response. Our independent review of the record, counsel’s brief, and Evans’s response discloses no nonfriv-olous 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/8480562/ | ON MOTION
ORDER
Darrell Boye, et al. move for a 35-day extension of time, until September 7, 2010, to file their reply brief. Boye, et al. states that the United States has no objection.
Accordingly,
It Is Ordered That:
The motion is granted. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480537/ | PER CURIAM:*
The attorney appointed to represent David Villalobos-Vazquez 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). Villalobos-Vazquez has filed a response. Our independent review of the record, counsel’s brief, and Villalobos-Vazquez’s response discloses no nonfrivo-lous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480538/ | PER CURIAM:*
The Federal Public Defender appointed to represent Erick Raul Sagastume-Portil-*370lo 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). Sagastume-Portil-lo 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 *370published 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/8480539/ | PER CURIAM:*
The attorney appointed to represent Alvaro Prado-Ortiz has moved for leave to withdraw and has filed a brief in accor*378dance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Prado-Ortiz 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/8480540/ | PER CURIAM:*
The Federal Public Defender appointed to represent Eduardo Lalo Jaimes Jaimes 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). Jaimes has not filed a response. Our independent review of the record and counsel’s brief discloses no non-frivolous 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/8480541/ | PER CURIAM:*
The Federal Public Defender appointed to represent Jose Angel Rosas, Jr., has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Rosas has not filed a response. Our independent review of the record and counsel’s brief discloses no non-frivolous 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/8480542/ | PER CURIAM:*
The Federal Public Defender appointed to represent Alfredo Martinez Balderas 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). Martinez Balderas has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further 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/8480544/ | ORDER
Local police in Bloomington, Illinois, responded to a mother’s call that her neighbor, Richard McGlothlin, had been taking photos of her son with a cell phone and masturbating as the boy played on a trampoline in the family’s backyard. A search of McGlothlin’s phone did not turn up any photos of his neighbor, but it did uncover troubling photos of partially nude children and what was later identified as the erect penis of a fifteen-year-old boy. After the *544district court denied his motion to suppress the photos, McGlothlin entered a conditional guilty plea to two counts of producing child pornography, and the district court sentenced him to concurrent terms of 180 months’ imprisonment, the statutory minimum for each count. See 18 U.S.C. § 2251(a), (e). McGlothlin filed a notice of appeal, but his appointed lawyer seeks to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he cannot identify any nonfrivolous argument to pursue. McGlothlin has not opposed counsel’s motion. See Cir. R. 51(b). We confine our review to the potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
McGlothlin has told counsel that he does not want his guilty pleas vacated, so counsel properly omits any discussion of the adequacy of the plea colloquy or the volun-tariness of the pleas. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002).
Counsel first considers whether McGlothlin could challenge the district court’s denial of his motion to suppress the photos on his cell phone. Bloomington police officer Robert Raycraft testified at the suppression hearing that, after speaking to McGlothlin’s neighbor, he approached McGlothlin, who was standing on the lawn in front of his home, and asked if he had been masturbating or taking photos of the boy next door. McGlothlin insisted that he had only been checking his phone messages and getting cigarettes out of his pocket, and when Raycraft asked him if he would find photos of the neighbor on his phone, he replied, “Not that neighbor.” When Raycraft asked if he could check the phone for himself, McGlothlin said, “Sure.” On the phone Raycraft first found photos of DVD covers; he did not specify what was on them and described them only as “odd” but not “alarming.” As he continued scrolling through the photos, he saw images of a different young boy jumping on a trampoline, climbing a tree, and playing on a bed. Many of those photos focused on the boy’s clothed buttocks and genital area. McGlothlin, who is 36, told Raycraft that the boy was a “friend” from the neighborhood and admitted that the boy’s parents probably were unaware that he had been photographing their son. Raycraft also saw photos of an infant with exposed genitalia lying on a hospital bed, young children in various states of undress playing near a lake, and a young girl standing at a bathroom sink with her breasts exposed. Finally, he saw a series of shots taken in a bathroom depicting the subject’s erect penis and bare buttocks, although he could not tell whether the subject was an adolescent or adult. Ray-craft then seized the phone to prevent McGlothlin from deleting the photos, but when McGlothlin’s ride to church arrived, Raycraft told him he was free to go. Ray-craft gave McGlothlin’s phone to Bloom-ington detective William Lynn for forensic investigation, and during a later interview, McGlothlin confessed to Lynn that he had been having sex regularly in his church bathroom with a fifteen-year-old boy and it was that boy whose erect penis was captured in six of the photos on his phone.
In arguing for suppression, McGlothlin asserted that the warrantless seizure of the phone had lacked probable cause and that any consent he gave was involuntary because of his low mental functioning. The district court concluded that McGloth-lin had voluntarily consented to Officer Raycraft’s request to search the cell phone for photos of the neighbor and that, once Raycraft saw the saved photos, he had probable cause to believe that McGlothlin possessed child pornography and thus to seize the phone.
*545The Fourth Amendment protects against unreasonable searches and seizures, but a warrantless, consensual search does not run afoul of the Constitution. United States v. Grap, 403 F.3d 439, 443 (7th Cir.2005). We would review for clear error the district court’s factual finding that McGlothlin voluntarily consented to the search of his cell phone, and to evaluate voluntariness we would look at the totality of the circumstances, including (1) McGlothlin’s age, education, and intelligence; (2) whether he was advised of his constitutional rights; (3) the length of detention prior to consent; (4) whether he consented immediately or only upon repeated requests for consent; (5) whether police used physical coercion; and (6) whether McGlothlin was in custody. See Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Biggs, 491 F.3d 616, 622 (7th Cir.2007).
We would not find clear error in the district court’s conclusion that McGlothlin freely gave Officer Raycraft permission to view the photos on his cell phone. Although McGlothlin had not been advised of his right to refuse consent, he was not in custody when Raycraft sought permission to search his phone, and Ray-craft did not physically or verbally coerce him into submission. Rather, the officer testified that he asked just once if he could search the phone’s photo bank, and McGlothlin responded, “Sure,” and handed it over. And although McGlothlin solicited testimony from his aunt that he has “slow” mental functioning, below-average intelligence does not automatically render involuntary the waiver of a constitutional right. See Garner v. Mitchell, 557 F.3d 257, 264-65 (6th Cir.2009) (collecting cases); Henderson v. DeTella, 97 F.3d 942, 948-49 (7th Cir.1996). Raycraft testified that McGlothlin gave no sign that he did not understand what was happening and, indeed, that his initial responses to Ray-craft’s questions — that he was only checking messages on his phone and getting cigarettes from his pants, and that his phone did not contain photos' of “that neighbor” — were more consistent with a person trying to avoid getting caught than with a person incapable of understanding what was happening. See United States v. Turner, 157 F.3d 552, 555 (8th Cir.1998).
Nor would we find error in the district court’s conclusion that the seizure of McGlothlin’s cell phone was permissible. Under the plain-view doctrine, an officer may seize evidence without a warrant when he is lawfully present and has a lawful right of access to the item, and the item’s incriminating nature is “immediately apparent.” Horton v. California, 496 U.S. 128, 136-37 (1990); Gentry v. Sevier, 597 F.3d 838, 849 (7th Cir.2010). There is no question that Officer Raycraft was lawfully present on McGlothlin’s front lawn to investigate the neighbor’s complaint, and, as explained above, he lawfully browsed through McGlothlin’s cell phone photos only after receiving permission. To satisfy the third element, Raycraft needed probable cause to believe that the cell phone was “linked to criminal activity.” United States v. Cellitti, 387 F.3d 618, 624 (7th Cir.2004). The federal definition of child pornography includes the depiction of a “lascivious exhibition of the genitals or pubic area” of a minor, 18 U.S.C. § 2256(8), (2), and the slightly broader definition under Illinois law includes the depiction of “a lewd exhibition of the unclothed or transparently clothed genitals, pubic area, buttocks, or, if such person is female, a fully or partially developed breast of the child,” 720 ILCS 5/11-20.1(a)(1)(vii). The majority of the photos on McGlothlin’s phone, although troubling, could not reasonably be characterized as child pornography be*546cause the required element of lasciviousness or lewdness was absent. See United States v. Griesbach, 540 F.3d 654, 656 (7th Cir.2008); People v. Lamborn, 185 Ill.2d 585, 236 Ill.Dec. 764, 708 N.E.2d 350, 353 (1999). But the photos of the erect penis fit the bill, and, although Raycraft could not tell with certainty that the photo’s subject was a minor, the context gave him probable cause to believe it was. McGlothlin’s phone contained dozens of photos of a young boy, and, although the boy was clothed and engaged in innocent activity, the photos were focused on his buttocks and genital region, suggesting McGlothlin’s sexual interest in the boy. That, combined with the other photos of young children in various states of undress and the neighbor’s complaint that McGlothlin had been masturbating while photographing her son, gave Raycraft reason to believe that all of McGlothlin’s subjects were minors. See Cellitti, 387 F.3d at 624 (collecting cases for proposition that officers may have probable cause to seize evidence that is not inherently illegal when context casts it in suspicious light). Because Raycraft had reason to believe that McGlothlin’s cell phone was linked, at the very least, to possession of child pornography, we agree with counsel .that it would be frivolous to challenge the district court’s conclusion that the phone was properly seized.
Counsel also considers whether McGlothlin could challenge the reasonableness of his sentence. At sentencing the district court properly calculated a guidelines imprisonment range of 292 to 360 months but concluded that the statutory minimum of 180 months’ imprisonment, when combined with a lifetime of supervised release, was sufficient to serve the purposes of sentencing. As counsel correctly points out, absent a government motion to reduce the sentence based on substantial assistance, see 18 U.S.C. § 3553(e), the district court was constrained from sentencing McGlothlin to anything less than 180 months’ imprisonment, see United States v. Forman, 553 F.3d 585, 588 (7th Cir.2009) (per curiam). And with respect to lifetime supervision, 18 U.S.C. § 3583(k) authorizes a term of supervised release of five years to life for a defendant convicted of producing child pornography, and the sentencing guidelines recommend that district courts impose the maximum term, see U.S.S.G. § 5D1.2(b)(2) (policy statement) & cmt. 1; United States v. Kennedy, 499 F.3d 547, 553 (6th Cir.2007); United States v. Planck, 493 F.3d 501, 505 (5th Cir.2007). McGlothlin did not object to lifetime supervision and, in fact, requested that the district court impose the statutory minimum prison sentence and a lifetime of supervised release. In accepting that request, the district court explained that a 15-year sentence supplemented by the “watchful eye” of lifetime supervision was sufficient punishment for McGlothlin, who, according to the court, suffers from an “illness” but is otherwise predisposed to “lawfulness and leading a good life.” Because the district court imposed the statutory minimum prison sentence and properly considered the factors under § 3553(a) in fashioning McGlothlin’s term of supervision, we agree with counsel that any challenge to the sentence would be frivolous.
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/8480546/ | ORDER
Joseph Barnes, an Illinois prisoner, thought he had hepatitis and wanted to be tested. He made several requests and filed several grievances at the prison. All were denied. One of his grievances was denied by Dr. Jovita Anyanwu, the prison’s acting medical director. Believing that denial caused him emotional distress, Barnes sued the doctor for negligent infliction of emotional distress. The district court granted summary judgment for the doctor, concluding that because the emotional distress did not accompany any physical impact Barnes could not prevail. Because in three previous cases we have upheld the reasoning used by the district court and we find no reason to break from that reasoning, we affirm.
I.
In August 1999, Joseph Barnes was concerned that he had contracted hepatitis, and he wanted to be tested. Several times he asked the nurses and doctors at the prison to test him, but his requests were denied; he then filed several grievances. In response to one of the grievances, Dr. Anyanwu, a medical supervisor at the prison, denied Barnes’s grievance and told him to follow the proper sick-call procedures.
After repeatedly seeking and being denied a hepatitis test, Barnes filed suit under § 1983 for deliberate indifference against the warden, a nurse, and another doctor at the prison, but not against Any-*551anwu. Barnes was eventually tested, and it turned out that he did, in fact, have hepatitis. He was treated, and we’re told that he is now cured. Despite being treated and cured, Barnes continued to pursue his suit.
The district court initially dismissed the suit for Barnes’s failure to exhaust his administrative remedies, but on appeal we reversed and remanded it for further proceedings. Barnes v. Briley, 420 F.3d 673 (7th Cir.2005). At some point in the litigation, Barnes amended his complaint, alleging a negligent infliction of emotional distress claim under Illinois law and a deliberate-indifference claim against Anyan-wu. Both claims were premised on Any-anwu’s denying Barnes’s grievance and instructing him to follow the prison’s sick-call procedures. Barnes eventually settled with the other defendants but continued to pursue his claims against Anyan-wu.
Anyanwu moved for summary judgment on both claims. Barnes conceded that he could not recover on his deliberate indifference claim, but contested summary judgment on the state-law claim. Barnes did not allege that the Anyanwu ever performed a botched medical procedure, just that Anyanwu denied his grievance and told him to follow the sick-call procedures. Relying on our precedent, the district court granted summary judgment for Anyanwu. It held that because Illinois requires direct victims to establish an impact, i.e., “a contemporaneous physical injury or impact” in these cases, Barnes cannot recover.
On appeal, Barnes argues that Illinois courts have interpreted the “impact rule” inconsistently and, given the nature of doctor-patient relationships, that we should carve out an exception to it for medical malpractice cases. In the alternative, he asks that we certify the question to the Illinois Supreme Court.
II.
We review de novo the district court’s grant of summary judgment. Knight v. Wiseman, 590 F.3d 458, 462 (7th Cir.2009). Summary judgment is proper where “there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c)(2). And when sitting in diversity, we apply state substantive law. Pisciotta v. Old Nat. Bancorp, 499 F.3d 629, 634 (7th Cir.2007). Here, the parties agree that Illinois law governs.
As an initial matter, it is questionable whether this is a medical malpractice case. In Illinois to recover in a medical malpractice case, a plaintiff must prove a duty owed by the defendant physician, a breach of that duty, an injury proximately caused by the breach, and resultant damages. Smith v. Pavlovich, 394 Ill.App.3d 458, 333 Ill.Dec. 446, 914 N.E.2d 1258, 1266 (2009). A physician’s duty is limited to those situations where a direct physician-patient relationship exists. And that “relationship cannot be established where a patient does not seek that physician’s medical advice and the physician does not knowingly accept that person as a patient.” Siwa v. Koch, 388 Ill.App.3d 444, 327 Ill.Dec. 787, 902 N.E.2d 1173, 1176 (2009). Here, Any-anwu was merely acting as a hospital administrator when he denied Barnes’s grievance; he was not acting as a physician and certainly not Barnes’s treating physician. From the record, there was no relationship between the two that would make this a medical malpractice case. Putting that issue to the side for a moment, we first consider Illinois law governing negligent infliction of emotional distress.
*552Before 1983, in all cases of negligent infliction of emotional distress, Illinois courts adhered to the “impact rule.” Under it, recovery was tied to whether the emotional distress accompanied a contemporaneous physical injury or impact to the plaintiff. Hayes v. Illinois Power Co., 225 Ill.App.3d 819, 167 Ill.Dec. 290, 587 N.E.2d 559, 561 (1992). But then the Illinois Supreme Court adopted a new standard for cases involving bystanders called “the zone of physical danger rule.” Rickey v. Chicago Transit Author., 98 Ill.2d 546, 75 Ill.Dec. 211, 457 N.E.2d 1, 5 (1983). Basically, after Rickey, victims of negligent infliction of emotional distress were put in two categories: direct victims and bystanders. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 702 (7th Cir.2009). Direct victims are the persons that the negligent conduct has directly affected; they are the ones that are actually physically injured by the defendant’s negligent conduct. To fall in this category the plaintiff must suffer some contemporaneous physical contact that caused the emotional distress. Meanwhile, bystanders are those who are in the zone-of-physical danger and who because of the defendant’s negligence fear for their own safety, which caused them emotional distress and a physical injury or illness from the emotional distress. Rickey, 75 Ill.Dec. 211, 457 N.E.2d at 5.
Under the rubric in Rickey, bystanders don’t have to suffer a physical impact or injury at the time of the negligent act, but they must have been in such proximity to the accident that there was a high risk and fear of physical impact to them. Id. And — and this is an important “and”— bystanders must show a “physical injury or illness as a result of the emotional distress caused by the defendant’s negligence.” Id. The decision in Rickey did not discard the impact rule for direct victims of negligent infliction of emotional distress. It only concerned bystanders. Hayes, 167 Ill.Dec. 290, 587 N.E.2d at 561 (“The court in Rickey was solely concerned with defining the parameters of bystander recovery.” (quotation omitted)).
Barnes argues that nine years later the Illinois Supreme Court in Corgan v. Muehling, 143 Ill.2d 296, 158 Ill.Dec. 489, 574 N.E.2d 602 (1991), followed Rickey’s lead and got rid of the impact rule for direct victim cases. But that’s not what the court did in Corgan. In that case, a patient sued a man who held himself out as a psychologist and to whom she went for treatment. Under the guise of “therapy,” he sexually exploited her. Id., 158 Ill.Dec. 489, 574 N.E.2d at 603. She claimed that his “methods” caused her severe emotional distress; specifically, his conduct caused her “fear, shame, humiliation and guilt.” Id. The precise issue in Corgan was whether “direct victims must set forth the pleading requirements established in Rickey when stating a cause of action for negligent infliction of emotional distress.” Id.
The court held that the higher burden established in Rickey for bystander cases — that the plaintiff allege a “physical injury or illness as a result of the emotional distress caused by the defendant’s negligence” — did not apply in direct victim cases. Id., 158 Ill.Dec. 489, 574 N.E.2d at 607. Corgan was a direct-victim case, and the patient satisfied the impact rule: on multiple occasions, the psychologist had sex with her. The issue was whether her alleged harms of “fear, shame, humiliation and guilt” were sufficient to recover. Id., 158 Ill.Dec. 489, 574 N.E.2d at 603. They would fail under the “zone of physical danger” test in Rickey for bystander cases. Leonard v. Kurtz, 234 Ill.App.3d 553, 175 Ill.Dec. 653, 600 N.E.2d 896, 898 (1992) (“Rickey requires an allegation that plaintiff suffered physical injury or illness as a result of the emotional distress.”). But those allegations are sufficient for direct *553victims. Thus, because she was a direct victim, Corgan stands an example of the continued application of the impact rule.
Consistent with this understanding of Corgan and Illinois tort law, we have held on three separate occasions that the impact rule applies to direct victims: Kapoulas v. Williams Ins. Agency, 11 F.3d 1380, 1384-85 (7th Cir.1993); Cleveland v. Rotman, 297 F.3d 569, 574 (7th Cir.2002); Lewis, 561 F.3d at 703 (noting “a direct victim of alleged negligent infliction of emotional distress must satisfy the impact rule”). Despite this consistency on our part, not all Illinois courts, including some federal district courts, have applied the impact rule to direct victims.
Barnes seizes on this inconsistency and argues that it portends either the abolition of the rule by the Illinois Supreme Court or the Court’s recognition of an exception for medical malpractice cases. Under Erie our job is to predict how a state’s highest court will decide a question of state law. Pisciotta, 499 F.3d at 634. We have already done that, on three occasions. Nothing since our earlier decisions suggests that the Illinois Supreme Court would hold differently than what we predicted in those three previous cases.
Indeed, a persuasive argument for finding that the impact rule has been abolished by the Illinois Supreme Court is in Pasquale v. Speed Products Engineering, 166 Ill.2d 337, 211 Ill.Dec. 314, 654 N.E.2d 1365, 1372 (1995). Although dicta, the language is unequivocal: “Corgan, however, extended Rickey’s elimination of the impact rule to instances where plaintiffs were the direct victims of the negligent conduct and suffered emotional distress injury.” Id., 211 Ill.Dec. 314, 654 N.E.2d at 1372. But since then two Seventh Circuit cases have rejected the argument that the impact rule no longer applies for direct victims. Cleveland, 297 F.3d at 574 (decided in 2002); Lewis, 561 F.3d at 703 (decided in 2009). And once we have settled on the state law to be applied in a diversity case, that precedent should be followed, unless there is a subsequent state court decision or statutory amendment that renders that decision clearly wrong. See Batts v. Tow-Motor Forklift Co., 66 F.3d 743, 747 (5th Cir.1995). Dicta or mere inconsistent application of the doctrine by some courts does not call into question our precedent from just a year ago or suggest that the Illinois Supreme Court would treat the question differently, if it decided this case. See 19 Wright, Miller & Cooper, Federal Practice & Procedure § 4507 (noting circumstances that indicate a break from a state supreme court’s precedent).
And there is no indication from case law or any general trend in Illinois that suggests the Illinois Supreme Court would hold that the impact rule does not apply in medical malpractice cases. Along with the lack of evidence that such an exception would be recognized, that is a pure policy decision; the Illinois legislature or the Illinois Supreme Court can make that decision, but it should not be made by our court. Alper v. Altheimer & Gray, 257 F.3d 680, 689 (7th Cir.2001). As we have noted before, “[flederal courts are loathe to fiddle around with state law.” Insolia v. Philip Morris Inc., 216 F.3d 596, 607 (7th Cir.2000). And that is especially true when it comes to important matters of state tort law, where there is an inherent danger in us intruding on the state’s development of its own law. See Lexington Ins. Co. v. Rugg & Knopp, Inc., 165 F.3d 1087, 1092 (7th Cir.1999).
As a final measure, Barnes asks that we certify the question to the Illinois Supreme Court to determine whether the direct impact rule applies in medical malpractice cases. One of the reasons that we certify questions to state supreme courts is *554to resolve questions that we are unsure of and to save judicial resources: “the right time to certify a question is before the first federal decision on the point. Certification eliminates the need to expend judicial resources predicting how another court will decide a question. Once we have invested the time and effort to make the prediction, the costs have been sunk.” Nat’l Cycle, Inc. v. Savoy Reinsurance Co., 938 F.2d 61, 64 (7th Cir.1991). We have on three previous occasions addressed the question, and in this circuit at least, it is resolved: in order to recover for negligent infliction of emotional distress under Illinois law, a direct victim must show he suffered a physical injury or impact. There is no qualification for medical malpractice victims or any other special class of victims; Illinois has not carved out any categories when dealing with this in the past and there is no reason to suggest they would with this case. Thus, the petition to certify the question is denied.
III.
Therefore, we reaffirm our holding that under Illinois law, a direct victim of negligent infliction of emotional distress must establish a contemporaneous physical injury or impact. This includes cases of medical malpractice. And we deny Barnes’s motion to certify the question to the Illinois Supreme Court. Accordingly, the judgment of the district court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480547/ | ORDER
Clark Abbott, born in 1947, filed his second application for Social Security disability benefits, claiming that heart disease, high blood pressure, and arthritis in his knee left him unable to work by the end of 2004, his last date insured. The administrative law judge determined that Abbott was not disabled because, he found, Abbott had acquired skills from his past work that he could transfer to a new job within his residual functional capacity. That ruling forms the heart of this appeal: Abbott argues that the ALJ erred in finding that he had transferable skills. Because the ALJ did not make the required findings of fact about what skills Abbott had acquired or how they would transfer *556to another position, we remand to the agency for further findings of fact.
I. Background
Abbott suffers from numerous ailments, including an arthritic knee, heart disease, high blood pressure, high cholesterol, peripheral vascular disease, and kidney disease. He had knee surgery in 1991 following an injury to his arthritic knee, and afterwards he reported continued swelling and pain. By 2005 a doctor recommended a total knee replacement, which Abbott underwent the following year. Adding to his health problems, he had multiple heart attacks, two in 1998 and another in 2004 that led to a triple bypass. Additionally, his high blood pressure and high cholesterol contributed to his peripheral vascular disease, which narrowed the arteries leading to his legs and to one kidney, causing poor renal function, blue-colored feet, and toenail loss. In his disability application, Abbott claimed that these conditions prevented him from walking or standing for more than 10 to 20 minutes before having to rest. He also said that he could not sit for more than two hours at a time because his knee would start to throb.
In advance of his hearing before the ALJ, Abbott (who was represented by counsel) submitted a brief arguing that he should be found disabled as a direct application of the Medical-Vocational Guidelines (“the grids”). See 20 C.F.R. Pt. 404, Subpt. P, App. 2. The grids reflect the Social Security Administration’s determination that certain combinations of age, education, work experience, and exertional limitations direct a finding of either disabled or not disabled at step five of the disability analysis. 20 C.F.R. § 404.1569; id. Pt. 404, Subpt. P., App. 2 § 200.00(a); see Haynes v. Barnhart, 416 F.3d 621, 627-30 (7th Cir.2005). Abbott rested his hopes on Rule 201.06 of the grids, a rule affecting claimants 55 years or older who are limited to sedentary work and whose education does not provide them with the ability for skilled work. That rule directs a finding of disabled if a claimant acquired no skills from his past work that would transfer easily to another skilled or semiskilled job. If, however, the Commissioner proved that the claimant had transferable skills, he would not be deemed disabled.
Abbott detailed his past work experience in his 2000 and 2004 disability applications. He explained that he had held several positions at a special education school from 1985 to 1999. He started as a “job coach,” but in 1991 he switched to the position of “teacher’s aide,” which he held only for a few months until he injured his knee while restraining a student. After the injury Abbott could no longer restrain students, and so the school created for him the position of “transporter,” which, he explained, consisted of driving students to their jobs and classes. He performed these duties from 1992 until he lost his job in 1999, and did not work again.
At the hearing a conflict developed between Abbott and the vocational expert (“VE”) about the nature of Abbott’s past work. The VE attributed to Abbott more responsibilities that would lead to transferable skills than Abbott reported having. For example, Abbott testified that as a teacher’s aide, he would monitor the students to make sure that they behaved but was not involved in any teaching activities. The VE, on the other hand, testified that based on his general understanding of what a teacher’s aide did, Abbott would have helped the teachers implement their lesson plans and would have learned how to deal with students with emotional problems. Abbott also testified that as a job coach, he would accompany students to their jobs and monitor them to ensure that *557they did not misbehave, but that he did not place students at jobsites, evaluate their performances, or train them except for an occasional demonstration of simple tasks, like how to mop. The VE, however, believed that Abbott gained experience training students with behavioral or emotional problems on how to do their jobs and would interact with employers to evaluate a student’s performance and create work goals. The VE stated that his testimony was based on his personal knowledge of the job-coach position at the school where Abbott had worked, as reflected in the grant proposal when the program was created, and through past work he had done with other job coaches at the school when he worked in the mental health field.
The VE then testified that Abbott’s acquired skills would be directly transferable to the job of caseworker. That job, the VE added, was performed at the sedentary level and could accommodate the additional restrictions identified by the ALJ in his hypothetical questions. But if Abbott’s job tasks were as narrow as he described them, the VE said, Abbott would have no transferable skills.
To bolster his testimony about his limited job duties, after the hearing Abbott submitted an affidavit from the teacher in whose classroom his desk was located when he was a transporter. The teacher asserted that Abbott would help monitor student behavior when he was not driving, but that he was not involved in any academic work. The teacher did not know what Abbott did as a job coach.
The ALJ concluded that Abbott was not disabled by the end of 2004, his date last insured. Following the familiar five-step analysis, see 20 C.F.R. § 404.1520(a)(4), the ALJ found that Abbott had not performed substantial gainful activity from the alleged onset date (step one), and he identified coronary artery disease and arthritis of the left knee as impairments that were severe (step two) but did not meet or equal a listed impairment (step three). The ALJ then turned to Abbott’s residual functional capacity (“RFC”) and concluded that Abbott could still perform sedentary work with additional restrictions to accommodate his medical impairments. Based on these restrictions, the ALJ determined that Abbott could not perform his past work as either a job coach or a teacher’s aide (step four). The ALJ then proceeded to step five, at which the Commissioner bore the burden to prove that Abbott could perform other jobs, which, because of the grids, were limited to skilled sedentary work that could accommodate his additional restrictions and that utilized his acquired work skills.
At step five, the ALJ found that as a job coach Abbott had acquired skills that would transfer to the job of caseworker with no adaptation. The ALJ did not list the specific skills associated with the job-coach position, however, stating only that “[t]he vocational expert testified that the claimant’s past relevant work as job coach was skilled and that the claimant had transferable work skills.” The ALJ acknowledged that Abbott’s testimony at the hearing contradicted the VE’s understanding of the skilled nature of his work as a job coach, but the ALJ discounted Abbott’s testimony because of his “major memory deficits” at the time of the hearing. The ALJ also found that the teacher’s affidavit did not address Abbott’s duties as a job coach and therefore did not affect the analysis.
The Appeals Council denied review, making the ALJ’s decision the final decision of the Commissioner. 20 C.F.R. § 404.981. Abbott sought review of the denial of benefits in the district court, and a magistrate judge proceeding by consent affirmed the decision.
*558II. Analysis
A. Transferability of Work Skills
Abbott devotes most of his brief on appeal to challenging the ALJ’s determination that he had acquired work skills that were transferable to the job of caseworker with no adaptation. He argues that the ALJ erred by crediting the VE’s description of his job duties over his. His own testimony, Abbott contends, demonstrates that he did not acquire any transferable skills as a job coach. Alternatively, Abbott argues that even if he did acquire some skills, they did not transfer to a caseworker position.
Abbott’s argument, however, misses a key point that itself requires a remand: the ALJ did not identify the specific skills Abbott had acquired as a job coach, let alone explain how those skills would transfer to the caseworker position. By omitting his reasoning on these points, the ALJ provided no basis upon which we can conduct our review and, furthermore, violated a directive found in Social Security Ruling 82-41. When transferability is material to the outcome, S.S.R. 82-41 requires an ALJ “to make certain findings of fact and include them in the written decision.” Those findings of fact include “the acquired work skills” and the “specific occupations to which the acquired work skills are transferable.” S.S.R. 82-41(6). Relying on S.S.R. 82-41, courts have vacated judgments in disability cases in which the ALJ failed to identify the claimant’s acquired work skills or to make specific findings about the transferability of skills and those findings were material to the outcome. See Key v. Sullivan, 925 F.2d 1056, 1062-63 (7th Cir.1991)1; Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1223-26 (9th Cir.2009); Draegert v. Barnhart, 311 F.3d 468, 472-77 (2d Cir.2002); Dikeman v. Halter, 245 F.3d 1182, 1184-88 (10th Cir.2001). But see Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 548-50 (6th Cir.2004) (requiring ALJ to make specific findings of fact about transferable skills only if ALJ relied solely on the Medical-Vocational Guidelines without resort to outside expert). The transferability of skills is a determination entrusted to the ALJ, not the VE, see S.S.R. 82-41(a)(3); Bray, 554 F.3d at 1225, and we review the actual reasons given by the ALJ without speculating about what the ALJ might have considered, see Stewart v. Astrue, 561 F.3d 679, 684 (7th Cir.2009). Therefore, we remand the case so that the ALJ can identify Abbott’s acquired work skills and explain why he would need to make “very little, if any, vocational adjustment” to a different job. 20 C.F.R. § 404.1568(d)(4).
One of Abbott’s arguments on appeal demonstrates why the ALJ’s findings of fact are necessary. Abbott notes that because of his advanced age and limitation to sedentary work, the ALJ must consider whether the work required of a caseworker is so similar to the work of a job coach that he “would need to make very little, if any, vocational adjustment required in terms of tools, work processes, work settings, or the industry.” 20 C.F.R. § 404.1568(d)(4); see S.S.R. 82-41(4)(c) (defining very little adjustment as being able “to perform these other identified jobs at a high degree of proficiency with a minimal amount of job orientation”). Abbott proceeds to argue that the caseworker position is more complex than the job-coach position, as evidenced by the higher “Reasoning Development” level listed in the Dictionary of Occupational Titles *559(“DOT”), and requires a larger underlying base of knowledge. These factors, he continues, mean that he would have to make significant vocational adjustments as a caseworker. But because the ALJ did not give his reasons for concluding that Abbott would have to make very little adjustment, it is impossible to tell whether the ALJ considered the different job requirements or how he resolved the issue.
B. Role of Memory Deficits in Discounting Abbott’s Testimony
Abbott also objects to another aspect of the ALJ’s decision regarding the transferability-of-skills analysis: the ALJ discounted Abbott’s hearing testimony about his past work based solely on “memory deficits.” Abbott does not dispute suffering some short-term memory loss, but he insists that this does not affect his long-term memory or his account of his past work. He notes that his hearing testimony is corroborated by his written accounts of his past work, and those accounts go back to 2000, predating his memory impairments.
Although we review credibility findings deferentially, upholding all but patently wrong conclusions, Terry v. Astrue, 580 F.3d 471, 477 (7th Cir.2009), the ALJ’s credibility findings must be reasoned and supported by the record, Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir.2010). Here, the record amply supports that Abbott suffers from short-term memory loss but is silent regarding any effects on his long-term memory. The ALJ did not support his finding of long-term memory deficits with any examples from the hearing or the record, nor did he discuss how Abbott’s history of consistent statements about the teacher’s aide and transporter positions affected his assessment of Abbott’s memory. It is true that Abbott did not describe his job-coach position in his applications (focusing instead on the more recent positions), but if he could accurately describe the later positions, the ALJ should have addressed why Abbott’s recollection of his duties as a job coach would be different.
C. DOT Classification of Job Coach
Abbott’s remaining argument about his work history concerns the classification of job coach in the DOT. He argues that the VE’s testimony is unreliable because he based his classification of the job-coach position on a nonexistent DOT entry. The VE classified the job-coach position as an “Employment Training Specialist,” DOT Code 094.224-022, but, Abbott says, no such listing appears in the DOT. According to Abbott, this omission casts doubt on the VE’s reliability.
This is an issue that can be resolved on remand. According to the Commissioner’s brief, the listing for Employment Training Specialist was developed after the last edition of the DOT was published in 1991 and so is not found in the published version but is available elsewhere. At oral argument, the lawyer for the Commissioner explained that she found the listing through the Occupational Network Database (0*NET), a database that the Department of Labor developed to replace the now-defunct DOT and that has cross-references to the old DOT listings. See 0*NET OnLine, http://online. onetcenter.org/. Our review of 0*NET reveals that Employment Training Specialist, DOT Code 094.224-022, corresponds to “Educational, Vocational, and School Counselor,” 0*NET Code 21-1012.00, but the associated tasks differ from those identified by the VE. This discrepancy and its import, if any, can be addressed on remand.
*560D. Residual Functional Capacity
The remaining issue is whether we should send the case back for an entirely new decision or if we should limit the remand to just the issue of transferability. Abbott wants a full remand, arguing that the ALJ’s RFC determination was flawed and that his capacity for work is less than the ALJ found. He contends that the ALJ overlooked several of his impairments and improperly discounted his complaints of pain and the effect of his symptoms on his daily activities.
Abbott’s complaints on appeal about the RFC determination are slightly inconsistent with his position at the hearing before the ALJ where he focused more on proving an RFC of sedentary work or less (to take advantage of the rules in the grids) than on proving total disability. That being said, the ALJ has a duty to examine all of the evidence in the record, 20 C.F.R. § 404.1545(a)(3), and his decision must be supported by substantial evidence, Simila v. Astrue, 573 F.3d 503, 513-14 (7th Cir.2009). Here, some errors in the ALJ’s decision lead us to conclude that a full remand is appropriate. First, the ALJ glossed over the treatment of Abbott’s peripheral vascular disease. The ALJ concluded that Abbott’s lower-extremity problems were “transitory” based on the Abbott’s normal electromyography (“EMG”) results. But EMG tests for neural and muscular problems and does not rule out the circulation problems that Abbott complains of. See MedlinePlus, Electromyography, http://www.nlm.nih. gov/medlineplus/ency/article/003929.htm (last visited July 21, 2010). A consulting doctor who examined Abbott in January 2005 — months past the circulation problem’s onset in August 2004 — noted that Abbott’s toes were “purple and cold,” further suggesting that the ALJ should have factored this impairment into his analysis. Second, the ALJ may have overlooked pertinent evidence regarding Abbott’s claim of disabling pain. The ALJ relied on Abbott’s initial disability application to find that Abbott’s pain medicine was limited to Ibuprofen and nothing stronger. But the initial application was filed before Abbott’s 2004 heart attack, and the ALJ did not mention other evidence in the record reflecting that later in 2004 Abbott was prescribed strong pain relievers, including hydrocodone, Neurontin, Darcovet, and Tylenol #3. This omission suggests that Abbott’s pain may have been more substantial than the ALJ believed, casting doubt on the reliability of the ALJ’s final conclusions.
III. Conclusion
For the foregoing reasons, we remand to the agency so that the ALJ can review his RFC assessment and provide findings of fact about Abbott’s acquired skills and how those skills transfer to the job of caseworker.
. The Key decision relied on Social Security Ruling 82-41 without citing to it explicitly. The decision quotes directly from the ruling but mistakenly attributes it to S.S.R. 1982, which does not exist. See 925 F.2d at 1062. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480548/ | ORDER
Police officers in Milwaukee, Wisconsin, arrested Antonio Harris based on, according to them, a violation-of-parole warrant. After the arrest, the officers discovered that Harris possessed crack, and he was convicted in Wisconsin state court of possessing cocaine with intent to deliver. See State v. Harris, 763 N.W.2d 559 (Wis.Ct.App.) (unpublished opinion), review denied, 316 Wis.2d 719, 765 N.W.2d 579 (2009). But while the state prosecution was pending, Harris brought this action in federal court under 42 U.S.C. § 1983. He alleged that the two arresting officers had no basis to stop him and that the arrest warrant was fabricated after the fact by his parole officer. The district court granted summary judgment for the defendants, and Harris appeals. We affirm the judgment.
After the case proceeded past screening and discovery, the defendants moved for summary judgment. The police officers submitted a “positive hit sheet” showing that a warrant existed on the day Harris was arrested, and the parole officer explained in an affidavit how that warrant *562came about. She states that electronic monitoring was a condition of Harris’s parole and required a telephone connection to detect when he was at home. Several days before his arrest, the warrant for Harris was issued (without input from the parole officer) after the monitoring system detected that he remained away from home for an entire weekend without permission. Harris later told the parole officer that he had moved and provided her his new address but not his phone number. Therefore, according to the parole officer, she did not cancel the warrant because Harris was still not in compliance, but she did not arrest him while he was in her office because he promised to give her the new information. The day after their last contact, however, Harris encountered the two police officers by chance and was arrested when they discovered the active warrant.
At summary judgment the police officers also argued that their investigation of Harris was lawful, and they included transcripts of their testimony from the state criminal proceedings, setting forth their encounter with Harris. One officer testified that a few weeks before the arrest he was performing community outreach in a high-crime area and learned that one resident was concerned about young men involved with drugs hanging out in front of her family’s house. The officer told her that he would increase patrols in the area and would cite people who were loitering on her property. Thus, when he saw Harris and another man in front of the woman’s house, he decided to investigate. When the officers approached the two men, Harris took a couple of steps backwards, which raised their suspicions, and they saw that both men were wearing electronic-monitoring bracelets on their ankles. They said that Harris answered their questions nervously and told them he was there to visit someone named Lisa, which the officers knew was not the name of the tenant. A frisk of Harris did not turn up a weapon, but a warrant check revealed the violation-of-parole warrant. A search incident to arrest turned up $111 in Harris’s pocket (parolees are not permitted to carry more than $100), and at the police station the officers found that Harris also possessed crack packaged for sale and another $300.
Harris submitted an affidavit in response, attesting that he and his companion were standing in the yard doing nothing wrong when the two police officers jumped from their car and searched him. One of the officers reached straight into his pants pocket, he says, retrieved $424, and then arrested him for loitering. As he was being handcuffed, a resident came out of the house and told the police that she had been expecting Harris, but still the officers arrested him. Harris avers, without explanation, that the officers did not run a warrant check at the scene. He also asserts in his affidavit that the warrant could not have existed because his parole officer never told him about it or arrested him when he checked in. He did not, however, provide an affidavit or other evidence to contradict the parole officer’s proof that the warrant was valid, relying instead on the argument in his brief that she should have canceled the warrant after he provided his new address.
Because Harris did not respond properly to the defendants’ proposed findings of fact, the district court deemed those facts undisputed unless they were contradicted by Harris’s affidavit. The court concluded that the police officers’ initial approach was a consensual police-citizen encounter and that by the time the encounter turned into a stop and frisk, the officers had developed reasonable suspicion. Additionally, the court concluded that Harris did not submit any admissible evidence to re*563fute that the warrant was valid or that the police officers knew about it at the time of the arrest. Finally, the court determined that the parole officer had reason to keep the warrant active when Harris did not provide a phone number.
On appeal Harris asserts that the police officers did not have reasonable suspicion to stop him and continues to insist that the officers were not aware of the warrant before his arrest. Additionally, he maintains that the warrant was fabricated but argues that, even if it was valid, his parole officer acted unreasonably in allowing the warrant to remain active after he gave her the information she requested.
Before we delve into Harris’s arguments, however, we must consider the effect his criminal conviction has on the scope of this appeal. Although Harris’s criminal case was still pending at the time he filed this lawsuit, he now has been convicted, and that conviction may preclude some of the issues that he now raises. See Wallace v. Kato, 549 U.S. 384, 393-94, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). We give the Wisconsin judgment the same preclusive effect that Wisconsin courts would give it. 28 U.S.C. § 1738; Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). And Wisconsin allows defensive collateral es-toppel to prevent a plaintiff from relitigat-ing an issue that has already been decided against him in another case. Michelle T. ex rel. Sumpter v. Crazier, 173 Wis.2d 681, 495 N.W.2d 327, 332 (1993). Courts determine on a case-by-case basis whether collateral estoppel (also known as issue preclusion) is appropriate, looking first to whether the issue was actually litigated and determined in the other suit and then deciding whether preclusion comports with fundamental fairness. Id. at 330-33.
Here, Harris moved to suppress the drugs in his criminal trial, calling into question the lawfulness of the initial stop and the validity of the warrant used to arrest him. The trial court heard testimony from both arresting officers and concluded by clear and convincing evidence that they lawfully approached Harris to question him, which then led to reasonable suspicion to stop and frisk him. The trial court found that after the frisk the officers discovered the warrant, which gave them probable cause to arrest and search Harris. Harris appealed this ruling, and the state appellate court upheld the determination. State v. Harris, 763 N.W.2d 559 (Wis.Ct.App.) (unpublished opinion), review denied, 316 Wis.2d 719, 765 N.W.2d 579 (2009). Thus, the same issues raised in this § 1983 suit were raised and decided against Harris in the criminal trial.
Because the issues are the same, we turn to whether equity would allow us to apply issue preclusion here. Looking at the factors Wisconsin uses to analyze fairness, see Michelle T., 495 N.W.2d at 330-31, we conclude that issue preclusion is appropriate. First, Harris had great incentive to fully litigate the matter because a favorable ruling would likely end his criminal case, and he had the opportunity to obtain review of the trial court’s ruling. Second, the issues under review are exactly the same and are based on the same law and the same historical facts. Third, the quality of the suppression hearing and this civil suit are the same: Harris has the same opportunity to present evidence in both proceedings. (His decision not to testify at the suppression hearing does not change the analysis. See id. at 334.) Fourth, the state had a clear-and-eonvinc-ing burden of proof at the suppression hearing, and so shifting burdens of proof would not bar preclusion against Harris, who now bears the burden to prove a violation only by a preponderance of the evidence. See Guenther v. Holmgreen, *564738 F.2d 879, 888 (7th Cir.1984). And finally, public policy weighs in favor of applying preclusion so as to avoid the risk of inconsistent state and federal judgments.
Accordingly, we conclude that all of Harris’s claims are precluded by the adverse findings at his suppression hearing. We acknowledge that issue preclusion is an affirmative defense, See Fed.R.Civ.P. 8(c)(1), but a court may raise it on its own, Kratville v. Runyon, 90 F.3d 195, 198 (7th Cir.1996), and we find it appropriate to do so here.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480551/ | ORDER
Anthony Porter, a Wisconsin inmate, claims in this action under 42 U.S.C. § 1983 and state law that prison physician Dalia Suliene was deliberately indifferent to a painful side effect of a drug injection administered without informed consent. The district court granted summary judgment to Dr. Suliene on the Eighth Amendment claim and relinquished supplemental jurisdiction over the state law claim. We affirm the judgment.
At summary judgment the parties’ statements of undisputed fact, together with their affidavits and Porter’s medical records, told the following story. Porter suffers from Crohn’s disease, which causes pain, fissures, and drainage in and near his rectum. Dr. Suliene treated him on November 14, 2008, for one such fissure. To speed the healing of the fissure and prevent infection, Porter received injections of a steroid and an antibiotic — the latter in his right buttock. According to Porter, the injections were given without first explaining the risks and benefits; Dr. Su-liene swears to the contrary.
Two weeks later, Dr. Suliene examined Porter and confirmed that the drainage near the fissure had diminished. But she found a quarter-sized lump on his right buttock near the site of the antibiotic injection. That lump could have been caused by the injection, or by the Crohn’s disease. *567Dr. Suliene prescribed an oral antibiotic to treat the new lump.
On December 1, Porter showed the lump to a physician’s assistant at the University of Wisconsin Gastrointestinal Clinic, where he sometimes receives off-site consultations for his Crohn’s disease. The assistant observed that much of Porter’s buttock was hot to the touch and apparently painful. She alerted a doctor, who recommended evaluating whether the lump should be drained surgically. That recommendation, however, was subject to approval by Dr. Suliene. She did not approve the surgical evaluation because, she opined, the lump did not signal a serious infection, surgery was unnecessary, and the best course was to continue administering the oral antibiotic and monitoring the lump.
Less than two weeks later, Dr. Suliene examined Porter and determined that the lump was shrinking. She continued treating him with the oral antibiotic. Three days after that, Porter reported pain in his right buttock, but medical staff could not see or feel a lump. By December 17, Dr. Suliene reported, the lump had been successfully resolved with oral antibiotics. On December 29, Porter complained of pain in his buttocks, but Dr. Suliene could find no lump. She did, however, treat him for drainage in the cleft between his buttocks. A little more than a week later, both Dr. Suliene and a nurse examined Porter and were still unable to feel a lump. On February 4, Porter returned to the Gastrointestinal Clinic, where he was again examined by the physician’s assistant. She felt a small lump on Porter’s right buttock but observed no redness or drainage. She remarked that the lump was “apparently healing.” (Porter’s affidavit adds events after February 4, 2009, but by then he had already filed this lawsuit.)
The district court screened Porter’s complaint, see 28 U.S.C. § 1915(e)(2), and allowed him to, proceed with his claim that Dr. Suliene showed deliberate indifference by choosing a non-surgical treatment for the lump, and violated Wisconsin’s informed-consent law when she first injected him with the steroid and antibiotic. The court dismissed Porter’s additional claim that the initial injections used to treat the symptoms of his Crohn’s disease constituted deliberate indifference to that condition.
At summary judgment the district court concluded that Porter’s evidence would not permit a jury to reasonably infer that treating the lump with an oral antibiotic instead of surgery constituted deliberate indifference. The court declined to exercise supplemental jurisdiction over the state law claim, see 28 U.S.C. § 1867(c)(8), reasoning that the state statute of limitations had not yet run, substantial judicial resources had not been expended, and resolution of the claim required further factual development.
Porter principally argues on appeal that a jury could infer deliberate indifference from Dr. Suliene’s decision to forego surgery. This contention is without merit. To establish deliberate indifference, Porter would need to show that Dr. Suliene intentionally or recklessly disregarded a serious medical need; mere negligence, even gross negligence, would not suffice. Estelle v. Gamble, 429 U.S. 97, 104-106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); McGowan v. Hulick, 612 F.3d 636, 639-40 (7th Cir.2010); Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir.2010). But Dr. Suliene did not ignore the lump on Porter’s buttock; she promptly treated it with an antibiotic, which in a matter of weeks proved to be fully effective. Dr. Suliene testified in her affidavit that surgery was medically unnecessary, and Porter did not submit contrary evidence. At most, another doctor had pro*568posed evaluating the surgical option, but a recommendation to investigate a particular treatment is not evidence of a need for that treatment. On this record, a jury could not conclude that choosing non-surgical treatment rose to the level of deliberate indifference. See Johnson v. Doughty, 438 F.3d 1001, 1013 (7th Cir.2006); Steele v. Choi, 82 F.3d 175, 179 (7th Cir.1996).
Porter also contends that the district court erred at screening by dismissing his third claim. His complaint alleges that Dr. Suliene displayed deliberate indifference to his Crohn’s disease by treating his fissures with an injected steroid and antibiotic, thereby causing a lump. The district court, however, concluded that a negative side effect like the lump did not provide a sufficient basis to infer deliberate indifference. On appeal Porter insists that the district court misunderstood his third claim; his contention, he tells us now, is that the Due Process Clause required that a hearing be conducted before he was treated with an antibiotic injection. But that description mischaracterizes his third claim.
Finally, Porter argues that the district court abused its discretion by relinquishing supplemental jurisdiction over his state law claim. When a district court correctly dismisses all federal claims before trial, the court ordinarily should relinquish jurisdiction over any supplemental claims. Doe-2 v. McLean County Unit Dist. No. 5 Bd. of Dirs., 593 F.3d 507, 513 (7th Cir.2010); Hansen v. Bd. of Trs. of Hamilton Se. Sch. Corp., 551 F.3d 599, 607 (7th Cir.2008). Here, the district court weighed “the values of judicial economy, convenience, fairness, and comity” and concluded that on balance they favored relinquishment. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988). Porter points to no “extraordinary circumstances” to undermine the district court’s conclusion. In re Repository Techs., Inc., 601 F.3d 710, 724-25 (7th Cir.2010).
Accordingly, we AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480552/ | MEMORANDUM**
Swaran Loomba, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) removal order. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law, including due process challenges, Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir.2003), and review for abuse of discretion the denial of a motion to remand, Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir.2005). We deny in part and dismiss in part the petition for review.
Loomba contends the IJ should have terminated proceedings for lack of prosecution due to technical defects in the charging documents. We agree with the BIA that the IJ did not err in granting the government’s request for a continuance to remedy these alleged defects. See 8 C.F.R. §§ 1003.29, 1003.30, 1240.10(e). Loomba’s contention that the agency violated its own regulations fails because he is unable to demonstrate prejudice. See Kohli v. Gonzales, 473 F.3d 1061, 1066-67 (9th Cir.2007) (‘When presented with allegations that an agency has violated its own regulation ... the claimant must show he was prejudiced by the agency’s mistake.”).
We lack jurisdiction to consider Loom-ba’s contention that the government exceeded the scope of the IJ’s order continuing proceedings because he failed to raise it before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).
Loomba contends the IJ violated due process by denying his request for an evi-dentiary hearing. Contrary to Loomba’s contention, the proceedings were not “so fundamentally unfair that [he] was prevented from reasonably presenting [his] case.” Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000) (citation omitted). Moreover, Loomba failed to demonstrate that an evidentiary hearing would have affected the outcome of the proceedings. See id. (requiring prejudice to prevail on a due process challenge). Loomba’s claim that the IJ was biased and uninformed is not supported by the record.
Finally, the BIA did not abuse its discretion in denying Loomba’s motion to remand the record to reconstruct a missing hearing transcript because Loomba failed to demonstrate any prejudice from the missing transcript. See Ramirez-Alejandre v. Ashcroft, 319 F.3d 365, 382 (9th Cir.2003) (“Under BIA procedure, a motion to remand must meet all the requirements of a motion to reopen and the two *590are treated the same.”); Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (The BIA’s denial of a motion to reopen shall be reversed only if it is “arbitrary, irrational or contrary to law”).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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/8480553/ | MEMORANDUM**
Marco Aurelio Castellanos-Garda, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s removal order. We have jurisdiction under 8 U.S.C. § 1252, and we grant the petition for review and remand for further proceedings.
Because the BIA decided this case without the benefit of our decision in Mercado-Zazueta v. Holder, 580 F.3d 1102, 1113-1116 (9th Cir.2009) (recognizing the ongoing validity of Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1029 (9th Cir.2005) (a parent’s admission for permanent resident status is imputed to the parent’s unemanci-pated minor children residing with the parent for the purpose of satisfying the seven-years of continuous residence “after having been admitted in any status”)), we remand to the BIA to allow it to reconsider Castellanos-Garcia’s appeal. See generally INS v. Ventura, 537 U.S. 12, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).
In light of our disposition, we do not reach Castellanos-Garcia’s equal protection challenge.
*593PETITION FOR REVIEW GRANTED; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480554/ | MEMORANDUM**
Fiorindo Cortesi appeals from his bench trial conviction and sentence for interference with agency function, in violation of 36 C.F.R. § 2.32(a)(1).
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Cortesi’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. By order filed October 5, 2009, we have provided Cortesi the opportunity to file a pro se supplemental brief. Counsel ' advises that he has been unable to locate Cortesi or serve him with this court’s order. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480556/ | MEMORANDUM**
Ronald and Annette Talmage appeal a Tax Court decision in favor of the Commissioner. We have jurisdiction under 26 U.S.C. § 7482. Having reviewed the tax court’s findings of fact for clear error, LOAD, Inc. v. Comm’r, 559 F.3d 909, 911 (9th Cir.2009), we affirm for the reasons stated by Judge Harry Haines in T.C. Memo. 2008-34 (Feb. 19, 2008).
AFFIRMED.
This disposition is not appropriate for publication and except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480558/ | PER CURIAM.
Appellant Bella S. Martinez, pro se, appeals the final decision of the United States Court of Federal Claims, which dismissed her complaint for lack of jurisdiction. Because the court properly applied the appropriate law in determining that it lacked subject matter jurisdiction over Ms. Martinez’s claims, we affirm.
Background
Ms. Martinez filed a pro se complaint against the United States in the United States Court of Federal Claims seeking unspecified damages pursuant to allegations of, inter aha, “corporate infiltration” that forced her to leave her home in Las Vegas, Nevada and caused her other financial and emotional hardships. Her complaint contained two sections, one titled “INDEPENDENTS WITHOUT FREEDOM!” and the other “INVESTIGATION: ‘By Order Of The Courts!’ ”, and was accompanied by several documents.
In response, the government filed a motion to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules of the United States Court of Federal Claims (“RCFC”). The court granted Ms. Martinez’s request for additional time to oppose the government’s motion. After Ms. Martinez filed her opposition and the government replied, she then moved to file supplemental materials. The court, however, denied Ms. Martinez’s request to file additional information and directed the clerk of the court to return the motion to her. Thereafter, the court granted the government’s motion and dismissed Ms. Martinez’s complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). As a result, the court did not review the merits of Ms. Martinez’s claims.
The court noted that it was difficult to discern who or which entities she levied her claims against. In any event, however, it determined it lacked subject matter jurisdiction over her Constitutional claims because they are not based on a money-mandating provision. It also concluded it lacked jurisdiction to hear her claims sounding in tort, seeking injunctive and declaratory relief outside of the bid protest context, and seeking punitive damages.
*878Ms. Martinez timely appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(3).
Discussion
We review judgments of the Court of Federal Claims to determine whether they are “premised on clearly erroneous factual determinations or otherwise incorrect as a matter of law.” Wheeler v. United States, 11 F.3d 156, 158 (Fed.Cir.1993). We review such decisions to dismiss a complaint for lack of subject matter jurisdiction de novo. See Res. Conservation Group, LLC v. United States, 597 F.3d 1238, 1242 (Fed.Cir.2010). We review evidentiary determinations by the Court of Federal Claims for abuse of discretion. See Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1378 & n. 2 (Fed.Cir.2009).
On appeal, Ms. Martinez contends that the Court of Federal Claims should have allowed her to file supplemental information. In addition, she appears to argue that the court erred in failing to apply “the law under organized conspiracy, fraud, malice, Fourth Amendment, Forgery[, and the] Federal Tort Claims Act.” We disagree.
First, we note that the court did not err in directing the clerk of the court to return Ms. Martinez’s motion for leave to file supplemental information that was filed after the briefing on the pending motion to dismiss concluded. No court order permitted additional information to be filed relating to the government’s motion, and Ms. Martinez’s late request was filed without proof of service and without proper binding in violation of Rules 5.3 and 5.5(c)(5), respectively.
Second, the Court of Federal Claims lacks jurisdiction over Ms. Martinez’s tort and civil rights claims because, under the Tucker Act, the court only has jurisdiction to hear claims “against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1) (emphasis added). Thus, it is well-established that the Court of Federal Claims does not have jurisdiction over tort claims, which include Ms. Martinez’s allegations under the Federal Tort Claims Act. See, e.g., Trafny v. United States, 503 F.3d 1339, 1340 (Fed.Cir.2007).
Further, the Tucker Act does not, by itself, create a right to money damages against the United States. Rather, the statutory or constitutional basis of plaintiffs claim must be “money-mandating.” United States v. Mitchell, 463 U.S. 206, 215-18, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983); Fisher v. United States, 402 F.3d 1167, 1173 (Fed.Cir.2005). Although Ms. Martinez seeks relief under the Fourth Amendment, it is not money-mandating and therefore does not provide the Court of Federal Claims jurisdiction to entertain her claims. See Brown v. United States, 105 F.3d 621, 623-24 (Fed.Cir.1997). Similarly, the court lacks jurisdiction to hear claims of criminal misconduct. See Joshua v. United States, 17 F.3d 378, 379 (Fed.Cir.1994). Because Ms. Martinez fails to identify a money-mandating statutory or constitutional basis for her claims, the Court of Federal Claims properly concluded that it lacks subject matter jurisdiction over Ms. Martinez’s complaint against the United States. Accordingly, the decision of the Court of Federal Claims is affirmed.
Costs
Each party shall bear its own costs.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480560/ | ON MOTION
ORDER
The International Trade Commission moves to dismiss this appeal. Amsted Industries Incorporated moves to voluntarily dismiss its appeal,
It Is Ordered That:
(1) Amsted Industries Incorporated’s motion is granted. Each side shall hear its own costs.
(2) The International Trade Commission’s motion is denied as moot. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480563/ | ON MOTION
ORDER
The United States moves for a 15-day extension of time, until September 14, 2010, to file its reply brief,
Upon consideration thereof,
It Is Ordered That:
The motion is granted. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480565/ | JUDGMENT
PER CURIAM.
This appeal was considered upon the record from the United States District Court for the District of Columbia and initially on the briefs and oral argument of the parties. On June 2, 2006, the court issued an opinion and order that, while otherwise rejecting the appellant’s challenges, held this case in abeyance and remanded the record to the district court for the limited purpose of: (1) determining “whether it would have imposed a different sentence materially more favorable to the defendant had it been fully aware of the post-Booker sentencing regime,” in accordance with United States v. Coles, 403 F.3d 764, 770 (D.C.Cir.2005); and (2) conducting further proceedings to consider the merits of appellant’s ineffective assistance of counsel claim, in accordance with United States v. Rashad, 331 F.3d 908 (D.C.Cir.2003). On May 9, 2009, the district court notified this court that it would have imposed a different sentence materially more favorable to appellant had it been fully aware of the post-Booker sentencing regime. On August 8, 2009, the district court determined appellant had not shown that he received ineffective assistance of counsel at trial. Upon the district court’s return of the record to this court, we ordered supplemental briefing from the parties. Upon consideration of the foregoing, it is
ORDERED and ADJUDGED that, for the reasons stated in the careful and detailed opinion of the district court, its order concluding that appellant has not shown he received ineffective assistance of counsel be affirmed. Furthermore, we reject appellant’s new claim of ineffective assistance of remand counsel as counsel’s representation was neither deficient nor prejudicial under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). It is
FURTHER ORDERED and ADJUDGED that, in light of the district court’s notice that it would have imposed a different sentence materially more favorable to appellant had it been fully aware of the post-Booker sentencing regime, this case be remanded to the district court for resentencing. See Coles, 403 F.3d at 770.
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. *886See 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/8480566/ | JUDGMENT
PER CURIAM.
This appeal from an order of the United States District Court for the District of Columbia was presented to the court, and briefed and argued by counsel. The court has accorded the issues full consideration and has determined they do not warrant a published opinion. See D.C. Cir. R. 36(d). It is
ORDERED and ADJUDGED that the appeal be dismissed as moot.
In 1997, Mark Bundy was sentenced to 144 months’ imprisonment for his role in a drug trafficking conspiracy. Under 21 U.S.C. § 841(b)(1)(A), he also received a mandatory term of 5 years’ supervised release. In 2008, Bundy requested a sentence reduction under 18 U.S.C. § 3582(c)(2). The district court concluded Bundy was ineligible for the reduction. Bundy appealed. On September 28, 2009, during the pendency of this appeal, Bundy completed his prison term and began his term of supervised release.
“[I]f an event occurs while a case is pending on appeal that makes it impossible for the court to grant ‘any effectual relief whatever’ to a prevailing party, the appeal must be dismissed” as moot. Church of Scientology of California v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895)). Bundy’s release moots this matter. He can no longer obtain a lower prison sentence, see U.S. Sentencing Guidelines Manual § lB1.10(b)(2)(C) [hereinafter U.S.S.G.], and any reduction in his statutorily mandated term of supervised release cannot be had under § 3582(c)(2), see United States v. Lafayette, 585 F.3d 435, 440 (D.C.Cir.2009).
Bundy argues there remains a live controversy because the legal issue on appeal — his eligibility for a sentence reduction — could have some bearing on his future ability to secure early termination of his supervised release pursuant to 18 U.S.C. § 3583(e)(1). Even assuming his mandatory term of supervised release could be reduced, Bundy’s argument *887faces two problems. First, Bundy is not yet eligible for relief under § 3583(e)(1) because he has not completed one year of supervised release. See 18 U.S.C. § 3583(e)(1). Second, the inability to obtain a reduced sentence on account of the completion of a prison term, though potentially relevant, see U.S.S.G. § 1B1.10 Application Note 4(B), is only one of many factors guiding the district court’s exercise of its discretion under § 3583(e)(1). The prospect that our resolution of the instant appeal will influence the district court to exercise its discretion to terminate Bundy’s supervised release under § 3583(e)(1) “is so speculative that any decision on the merits” “would be merely advisory and not in keeping with Article Ill’s restriction of power” to live cases or controversies. Burkey v. Marberry, 556 F.3d 142, 149 (3d Cir.2009); see United States v. Blackburn, 461 F.3d 259, 262 (2d Cir.2006); cf. Spencer v. Kemna, 523 U.S. 1, 14, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998).
Bundy’s reliance on United States v. McCoy, 313 F.3d 561 (D.C.Cir.2002) (en banc), is misplaced. In McCoy, the defendant’s appeal was not moot, despite her release from prison and commencement of supervised release, because the case came to this court as a direct appeal from the sentencing proceeding in which the term of supervised release was imposed. Id. at 564. As such, the court could affect relief by vacating the term of supervised release and remanding for resentencing. See id. The same cannot be said here. It is
FURTHER ORDERED that the memorandum and order of the district court challenged on appeal be vacated and the case be remanded to the district court with instructions to dismiss Bundy’s motion for a reduced sentence as moot. See United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S.Ct. 104, 95 L.Ed. 36 (1950); United States v. Schaffer, 240 F.3d 35, 38 (D.C.Cir.2001) (en banc).
The Clerk is directed to withhold issuance of the mandate herein until seven days after the disposition of any timely petition for rehearing. See Fed. R.App. P. 41(b); D.C. Cir. R. 41(a)(1). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480567/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the *888brief filed by appellant. See Fed. R.App. P. 84(a)(2); D.C.Cir. Rule 84(j). It is
ORDERED AND ADJUDGED that the district court’s order filed January 6, 2010, be affirmed. The district court correctly held that there is no private right of action under 18 U.S.C. §§ 241 and 242, see, e.g., Pope v. Thornburgh, 978 F.2d 744 (D.C.Cir.1992) (per curiam) (table case), and that appellant may not recover damages arising from his criminal conviction and resulting confinement because he has not shown that his conviction has been invalidated. See Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).
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/8480568/ | 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 May 14, 2010, be affirmed. The court properly dismissed the case for lack of subject matter jurisdiction, as the parties are not diverse, the case presents no federal question, and the district court may not review decisions of other courts. See, e.g., 28 U.S.C. §§ 1331 and 1332.
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/8480569/ | JUDGMENT
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 21, 2010, be affirmed, as the court properly dismissed appellant’s complaint as frivolous. See, e.g., Neitzke v. Williams, 490 U.S. 319, 325, 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/8480570/ | 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 May 14, 2010, be affirmed. The court did not abuse its discretion in dismissing the case without prejudice for noncompliance with Fed. R.Civ.P. 8(a). See, e.g., Ciralsky v. CIA, 355 F.3d 661, 668 (D.C.Cir.2004).
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/8480571/ | OPINION
PER CURIAM.
Stalin Emilio Perez petitions this Court for review of a final removal order entered by the Board of Immigration Appeals (“BIA”), which affirmed a decision by the Immigration Judge (“U”) to reject Perez’s claim that he has derivative United States citizenship through his father. We too must reject Perez’s claim to derivative citizenship, and we will deny his petition for review.
Perez is a native and citizen of the Dominican Republic, where he was born out of wedlock on September 4, 1981, to parents who were Dominican citizens. Perez and his mother entered the United States on June 4, 1988, as lawful permanent residents. In September 2008, the District Court for the Eastern District of Pennsylvania sentenced Perez to sixty months in prison following his plea of guilty to charges of conspiracy to distribute fifty grams or more of cocaine base, distribution of fifty grams or more of cocaine base, and distribution of cocaine. In 2009, the Department of Homeland Security (“DHS”) served a Notice to Appear charging Perez as removable for having been convicted of a controlled-substance viola*1001tion and aggravated felonies. See 8 U.S.C. §§ 1227(a)(2)(B)(i) and (iii). Perez conceded the allegations in the Notice to Appear but argued that he is not removable because he has derived United States citizenship from his father. In September 1984, about four years prior to Perez’s arrival in this country, his father became a naturalized United States citizen.
DHS rejected Perez’s application for citizenship, issuing a written explanation of the reasons for its decision. After a hearing at which Perez testified, the IJ agreed with DHS’s analysis, holding that the evidence fails to establish a claim to derivative citizenship under former INA § 321(a), 8 U.S.C. § 1432(a). Further, the IJ sustained the charged grounds for removal, found that Perez was ineligible for relief, and ordered removal to the Dominican Republic. The BIA summarily affirmed. Perez timely filed a petition for review in this Court.
We have jurisdiction to review a nationality claim, 8 U.S.C. § 1252(b)(5)(A), and because the facts underlying Perez’s claim are not in dispute, we can decide his claim as a matter of law. See id. Where, as here, the BIA summarily affirms the IJ without issuing an opinion, we review the IJ’s decision. See Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir.2003) (en banc). ‘We exercise plenary review over [a] derivative citizenship claim, as it presents a pure question of statutory interpretation.” Jordon v. Att’y Gen., 424 F.3d 320, 328 (3d Cir.2005). “The burden of proof of eligibility for citizenship is on the applicant,” and “[a]ll doubts should be resolved in favor of the United States and against the claimant.” Bagot v. Ashcroft, 398 F.3d 252, 256-57 (3d Cir.2005) (quotation marks omitted).
Perez cannot seek derivative citizenship through his mother, who is not a United States citizen. With regard to his father, who is a naturalized citizen, there is no dispute that Perez’s claim must be considered under former 8 U.S.C. § 1432(a)(3), the language of which, as relevant here, confers citizenship upon a child born outside the United States to alien parents upon “[t]he naturalization of the parent having legal custody of the child when there has been a legal separation of the parents[.]” 8 U.S.C. § 1432(a)(3) (emphases added); see also Morgan v. Att’y Gen., 432 F.3d 226, 228 (3d Cir.2005) (explaining that under § 1432(a)(3) “a child born outside the United States automatically acquires United States citizenship if, while the child is under the age of eighteen, the parent with legal custody of the child is naturalized while that child’s parents are legally separated”).
Perez’s claim fails under § 1432(a)(3) for at least two independent reasons. First, his parents never married, and thus, as the IJ held, “that means [they] would not have been legally separated.” A.R. at 7; see Barthelemy v. Ashcroft, 329 F.3d 1062, 1065 (9th Cir.2003) (holding that alien “does not enjoy derivative citizenship under the first clause of § [1432](a)(3) because his natural parents never married and thus could not legally separate”).1 As we explained in Morgan, “a legal separation for purposes of § 1432(a) occurs only upon a formal governmental action, such as a decree issued by a court of competent jurisdiction that, under the laws of a state *1002or nation having jurisdiction over the marriage, alters the marital relationship of the parties.” 432 F.3d at 234. Perez has presented no evidence of a legal separation.
While Perez suggests that his parents may have had a “common law marriage” during their together in the Dominican Republic, Perez offers no evidence even arguably raising the possibility that he can prove the existence of such a marriage. Cf. A.R. at 55 (DHS interviewed Perez’s father, who “confirmed that he was never married to [Perez’s] mother”). In any event, even assuming a common law marriage (and also assuming, without deciding, that Perez did not waive this issue by failing to raise it at the agency level), there remains no evidence of a “legal separation,” which is an express requirement for citizenship under § 1432(a)(3). See Morgan, 432 F.3d at 234; see also Jordon, 424 F.3d at 330 (explaining that “legal separation must occur prior to naturalization in order to satisfy the first clause of § 1432(a)(3)”).
Second, Perez’s father did not have “legal custody.” See Bagot, 398 F.3d at 257 (explaining that § 1432(a)(3) requires parent to have legal custody at the time parent is naturalized). When his father was naturalized in 1984, Perez was in the custody of his mother in the Dominican Republic. He and his mother came to the United States almost four years later, and apparently did so without regard to the father’s presence in this country.2 Further, Perez’s mother retained custody in this country, and his father confirmed that Perez “always lived with [his] mother,” and “never lived with him.” A.R. at 55.
On this record, the claim to derivative citizenship under § 1432(a)(3) is properly denied as a matter of law. See Jordon, 424 F.3d at 330. We recognize Perez’s concern that his removal will visit a substantial hardship upon his young family, his mother, and others. However, after a careful review of the record, we discern no error in the IJ’s decision to order removal based on the grounds charged in the Notice to Appear — grounds that Perez expressly conceded and which are clearly substantiated by the record of his conviction for serious criminal offenses. While Perez suggests that it is “unconstitutional” for Congress to afford no relief from removal to a long-term permanent resident who claims that he and his family will suffer hardship, we must agree with respondent that “Congress has a rational basis for discouraging the retention of aliens who have committed serious crimes.” Respondent’s Br. at 17.
We have considered Perez’s remaining contentions but find them without merit. For the foregoing reasons, we will deny the petition for review.
. See also Lewis v. Gonzales, 481 F.3d 125, 130 (2d Cir.2007) (observing that "every other court confronted with the question has held that the first clause of § 1432(a)(3) requires a legal separation even if the child's parents never married. As strange as it may at first appear, this feature of the statute is a principled one. The governing principle ... is respect for the rights of an alien parent who may not wish his child to become a U.S. citizen.”) (citations omitted)
. According to Perez, his father "migrated to the United States in [the] mid[19]70s.” Petitioner's Br. at 5. By the time Perez arrived in 1988, his father "had started a new family of his own.” Reply Br. at 3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480573/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wade Stepney, Jr. appeals the district court’s orders accepting the recommenda*168tion of the magistrate judge and dismissing his 42 U.S.C. § 1983 (2006) complaint without prejudice for failure to exhaust administrative remedies. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Stepney v. Beckwith, No. 8:09-cv-00771-MBS, 2010 WL 293786 (D.S.C. Jan. 21, 2010); 2009 WL 1357225 (May 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/8480574/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Arthur Willden appeals the district court’s judgment in favor of AvalonBay Communities, Incorporated, after the district court granted AvalonBay summary judgment on its claims against Willden and awarded it $7,450,902 in damages. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s judgment. See AvalonBay Communities, Inc. v. Willden, No. 1:08-cv-00777-LO-TRJ (E.D.Va. Oct. 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/8480575/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Luther appeals the district court’s order granting the Defendant’s motion to dismiss his civil action. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Luther v. Locke, No. l:09-cv-00748-LMB-IDD (E.D.Va. 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/8480576/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Julius Nesbitt seeks to appeal the district court’s order denying his motion for reconsideration of its denial of his suppression motion and motion for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Nesbitt seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480577/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Benjamin Smith, a federal prisoner, appeals the district court’s order denying relief on his 28 U.S.C.A. § 2241 (West 2006 & Supp.2010) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Smith v. Hollingsworth, No. 1:08-cv-03166-RDB (D.Md. Sept. 17, 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/8480578/ | PER CURIAM: *
Defendant-Appellant Refugio Lopez was tried and convicted in federal court of conspiring to transport aliens under 8 U.S.C. § 1324(a)(l)(A)(ii). He was sentenced to 70 months’ imprisonment and three years’ supervised release. He raises several challenges to his conviction and sentence. We AFFIRM.
I. Factual and Procedural Background
Refugio Lopez, also known as “Cuco,” was indicted on charges of conspiring to transport or attempt to transport illegal aliens within the United States, in violation of 8 U.S.C. § 1324(a)(l)(A)(v)(I) and (B)(i). He was convicted by a jury in federal court and sentenced by the district court to 70 months’ imprisonment, at the low end of the United States Sentencing Guidelines range of 70 to 87 months. Lopez brought this timely appeal.
At trial, the following evidence was offered. Guadalupe Montes owned a house in Big Wells, Texas, close to the U.S.Mexico border, and illegal aliens would frequently come to her house and ask her for food and water and to use her telephone. In 2005, an alien using her phone handed it to her and Lopez was on the line; Lopez asked Montes if he could bring trucks to her house to pick up the aliens and he offered her money. Montes began *249helping Lopez transport the aliens on a regular basis.
Anthony Nunez, a mechanic, met Lopez in 2005 when Lopez asked him. to repair a vehicle. After having Nunez repair a number of vehicles, Lopez eventually began to trust Nunez and asked him if he would help transport illegal aliens. Lopez offered Nunez $100 for each alien he transported. Nunez agreed at some point in 2006, and he began helping Lopez transport the aliens on a regular basis. Lisa Carter, Nunez’s common law wife, also began working for Lopez in 2007, after she was released from prison (on an unrelated charge). While she was in prison, Nunez had informed her that he was working for Lopez.
The conspiracy generally operated as follows. Lopez would arrange for illegal aliens to cross the border to Montes’s house. The aliens would be transported (sometimes by themselves, sometimes with the help of guides) to Lopez’s house in San Antonio, where they would eat and bathe. If the aliens had not paid Lopez before crossing the border, they would arrange for friends or family members to wire money through Western Union; Lopez paid Montes, Nunez, and Carter to pick up the wire transfers for him under their names at the rate of $50 per transfer. The payments ranged from approximately $1,500 to $2,700 per person. Carter and Nunez both testified that they did not know the persons who wired the money and that the transfers were payments for alien smuggling. Once payment was finalized, Nunez (and sometimes Carter) would drive the aliens to their final destinations (usually in the area of Austin, Houston, or Dallas).
On March 11, 2007, Carter was arrested outside Big Wells. At the time of her arrest, Carter was driving one of Lopez’s pickup trucks, which held nine illegal aliens. Both Carter and Nunez cooperated with an investigation, and Nunez gave permission to federal officers to tape record phone conversations between himself and Lopez, during which Lopez made incriminating statements about the conspiracy to transport aliens. A search of Lopez’s house in San Antonio by ICE officials discovered piles of dirty clothing in all sizes, for both men and women, including little girls’ shoes.
Both Carter and Montes pled guilty to charges arising from the conspiracy. Carter, Montes and Nunez testified against Lopez at his trial, and all three identified Lopez as having the nickname “Cuco.” Carter testified that over the course of three months, she personally was involved in transporting about 75 aliens. Nunez testified that he delivered groups of aliens (between 18 and 21 aliens) about once a month between 2006 and 2007. As mentioned above, Lopez was convicted and sentenced to 70 months’ imprisonment, and he brought this timely appeal.
II. Constructive Amendment
Lopez argues that the trial court improperly constructively amended the indictment by instructing the jury on aiding and abetting. Lopez was indicted solely on principal liability under 8 U.S.C-. § 1324; by instructing the jury on aiding and abetting liability, he contends that the aiding and abetting instruction allowed the jury to convict him on a materially different theory or set of facts than those originally charged.
Lopez concedes that, as he failed to object to the jury instruction at trial, plain error review applies. See United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). “To establish plain error, an appellant must show a forfeited error that is clear or obvious and that affected his substantial rights.” Unit*250ed States v. Davis, 602 F.3d 643, 647 (5th Cir.2010). “Ordinarily, an error affects substantial rights only if it ‘affected the outcome of the district court proceedings.’” Id. (quoting Puckett v. United States, — U.S. -, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009)). If this showing is made, “the court of appeals has the discretion to remedy the error — discretion which ought to be exercised only if the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’” Puckett, 129 S.Ct. at 1429 (quoting Olano, 507 U.S. at 736, 113 S.Ct. 1770).
Lopez was indicted under 8 U.S.C. § 1324(a)(l)(A)(v)(I), the conspiracy subsection of the alien smuggling statute, which “distinguishes for purposes of punishment between a principal and an aider and abettor.” United States v. Williams (Williams I), 449 F.3d 635, 647 (5th Cir.2006); 8 U.S.C. § 1324(a)(l)(B)(i), (ii) (describing statutory maximum sentences for principal liability — not more than ten years — and for aider and abettor liability — not more than five years). Section 1324 is unique in this regard; under the general aiding and abetting code section, 18 U.S.C. § 2, a person who aids or abets is treated in the same manner as the principal for sentencing purposes. The verdict form submitted to the jury was general and did not allow the jury to indicate whether it convicted Lopez as a principal or as an aider and abettor.
The addition of the aiding and abetting instruction has implications under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), as the statutory maximum sentence increases from five years (for aiding and abetting under 8 U.S.C. § 1324(a)(l)(B)(ii)) to ten years (for being a principal under 8 U.S.C. § 1324(a)(l)(B)(i)) without requiring a jury determination of the facts required to increase the statutory maximum. See United States v. Hilario-Hilario, 529 F.3d 65, 75-77 (1st Cir.2008) (discussing a similar claim).
“The Fifth Amendment guarantees that a criminal defendant will be tried only on charges alleged in a grand jury indictment.” United States v. Threadgill, 172 F.3d 357, 370 (5th Cir.1999) (internal quotation marks omitted); see also Stirone v. United States, 361 U.S. 212, 215-16, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960) (“[Ajfter an indictment has been returned its charges may not be broadened through amendment except by the grand jury itself.”). “A jury charge constructively amends an indictment, in violation of the Fifth Amendment, if it permits the jury to convict the defendant upon a factual basis that effectively modifies an essential element of the crime charged.” United States v. Daniels, 252 F.3d 411, 413-14 (5th Cir.2001) (internal quotation marks omitted). “That is, constructive amendment occurs if the jury is permitted to convict on an alternative basis permitted by the statute but not charged in the indictment.” Id. at 414 (internal quotation marks omitted). Ordinarily, a constructive amendment constitutes reversible error. United States v. Reasor, 418 F.3d 466, 475 (5th Cir.2005).
Assuming without deciding that the first three requirements for plain error review are met, we decline to exercise our discretion to correct any error in this case. Cf. Hilario-Hilario, 529 F.3d at 76 (stating, on plain error review of a constructive amendment claim dealing with § 1324’s aiding and abetting provision, that “[i]t might be enough to negate [any] miscarriage [of justice] if the evidence were compelling and the jury likely ... found [the defendant] guilty as a principal,” but deciding to exercise discretion in defendant’s *251favor because the court had “no reason to think [the jury] convicted [the defendant] of the substantive offense of smuggling”). Unlike Hilario-Hilario, the record is clear that the jury convicted Lopez as a principal, as the evidence against him was overwhelming. The government consistently presented the theory that Lopez was the leader of the conspiracy and asked the jury during closing arguments to return a guilty verdict on the charge of conspiring to transport aliens. Montes, Carter, and Nunez all consistently testified that Lopez recruited them into the conspiracy and that Lopez was the one who paid them for participating. There was no evidence to support a conclusion that the jury found that Lopez was liable as an aider and abettor but not as a principal. In fact, the only time the term “aiding and abetting” was used before the jury during the entire trial was when the district court gave the disputed jury instruction. See United States v. Partida, 385 F.3d 546, 559 (5th Cir.2004) (finding no plain error on review of claim that jury instruction allowed jury to convict on un-indicted charge of attempted conspiracy, after considering that “neither the prosecution nor the defense argued for a finding of attempted conspiracy, nor was evidence of a mere attempt placed before the jury” and noting the “overwhelming evidence of a fully formed conspiracy”). Allowing Lopez’s conviction to stand does not “seriously affect[] the fairness, integrity or public reputation of judicial proceedings,” Puckett, 129 S.Ct. at 1429, and therefore we decline to exercise our discretion to correct any error on this point.
Lopez also complains of the general verdict form submitted to the jury. He contends that the general verdict form, in combination -with the aiding and abetting instruction, allowed the jury to convict him of either conspiracy to transport aliens or aiding and abetting a conspiracy to transport aliens. Lopez argues that had the verdict form allowed the jury to indicate which theory they convicted Lopez under, the Apprendi problem would be alleviated. Assuming without deciding that an amended verdict form would have cured any Apprendi error, Lopez has waived this error. After reading the jury instruction, the district court realized that there was a potential problem with submitting the case to the jury -with the general verdict form. The district court stated:
[I]t hit me as I was reading the instructions the government asked for an aiding and abetting charge. Do you want me to prepare a new verdict form that allows the jury to tell us on what theory they are relying for conviction, be it conspiracy or aiding and abetting? And the only reason I’m saying that is conspiracy is zero to 10 under the statute. When you combine the two theories I’m not so sure whether it’s zero to 10 or zero to five, because aiding and abetting is zero to five regardless of [a finding of] for [financial] gain. And it didn’t hit me until I was reading the instruction.
To find him guilty of aiding and abetting the conspiracy, wouldn’t that potentially be zero to five? ... If you — all want to leave it generally as it is.
Defense counsel responded: “We’re fine the way it is, Your Honor.”
“Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.’ ” Olano, 507 U.S. at 733, 113 S.Ct. 1770 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). “Waiver is an ‘affirmative choice by the defendant to forego [sic] any remedy available to him.’ ” United States v. Phillips, 477 F.3d 215, 223 (5th Cir.2007) (quoting United States v. Dodson, 288 F.3d 153, 160 *252(5th Cir.2002)). The district court specifically brought the Apprendi problem to defense counsel’s attention by warning of the discrepancies between the statutory maximum sentences for the two crimes. Defense counsel specifically declined the opportunity to submit a jury form that would have allowed the jury to distinguish between principal liability and aider and abettor liability. By making the affirmative choice to decline the district court’s express offer to amend the verdict form, Lopez intentionally relinquished a known right and, correspondingly, waived any error as to the jury verdict form. We also note that, had the error not been waived, it likely would have been harmless error, as it is clear that Lopez was tried exclusively as a principal.
III. Sufficiency of the Evidence
Lopez argues that the evidence was insufficient to support a conviction. Specifically, he contends that there was no credible evidence of an overt act commit-téd in order to further the conspiracy, and that the government failed to prove the “element” of alienage.
On a challenge to the sufficiency of the evidence, “[w]e will affirm the district court ‘if a reasonable trier of fact could conclude that the elements of the offense were established beyond a reasonable doubt.’ ” United States v. Percel, 553 F.3d 903, 910 (5th Cir.2008) (quoting United States v. McDowell, 498 F.3d 308, 312 (5th Cir.2007)) (alteration omitted). In undertaking this review, we must view the evidence in the light most favorable to the verdict and draw all reasonable inferences from the evidence to support the verdict. Id. “[W]e apply a rule of reason, knowing that the jury may properly rely on their common sense and evaluate the facts in light of their knowledge and the natural tendencies and inclinations of human beings.” United States v. Holmes, 406 F.3d 337, 351 (5th Cir.2005) (internal quotation marks omitted).
Lopez argues that the government was required to prove an overt act taken in furtherance of the conspiracy, but that the government failed to do so. The government responds that conspiracy under 8 U.S.C. § 1324(a)(l)(A)(v)(I) does not require proof of an overt act, as the code section is silent as to the requirement of any overt act.1 In support of this proposition, the government cites three Supreme Court cases where other similarly silent criminal code sections were held not to require proof of an overt act. See Whitfield v. United States, 543 U.S. 209, 214, 125 S.Ct. 687, 160 L.Ed.2d 611 (2005) (proof of overt act not required under 18 U.S.C. § 1956(h) because “the text ... does not expressly make the commission of an overt act an element of the conspiracy offense”); Salinas v. United States, 522 U.S. 52, 63, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997) (same as to 18 U.S.C. § 1962(d), RICO statute); United States v. Shabani, 513 U.S. 10, 11, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994) (same as to 21 U.S.C. § 846, *253drug conspiracy statute). The government’s contention is perhaps correct in light of this Supreme Court precedent;2 however, we do not need to determine whether an overt act is required, because the government did clearly establish that an overt act had been taken in furtherance of the agreement.
All three co-conspirators testified to overt acts committed in furtherance of the agreement, including that: aliens were guided to Montes’s house in Big Wells; aliens would be transported from Big Wells to Lopez’s house in San Antonio in tarp-covered trucks owned by Lopez; once at Lopez’s house, the aliens would shower, eat, and make payment arrangements; the aliens’ family members would wire payments through Western Union (registered under Carter’s, Nunez’s, and Montes’s names); Carter and Nunez were paid $50 per wire transfer by Lopez; Carter testified she was involved in transporting around 75 aliens over the course of three months; and Carter was arrested while driving a truckload of aliens from Montes’s ' house to Lopez’s house. Lopez challenges his co-conspirators’ testimony on credibility grounds; however, all credibility determinations must be resolved in favor of the verdict. United States v. Majors, 328 F.3d 791, 796 (5th Cir.2003) (per curiam). We may not entertain Lopez’s credibility-based challenges to the sufficiency of the evidence. A rational jury could have found beyond a reasonable doubt that Lopez conspired to transport illegal aliens.
Lopez also contends that the government failed to prove that the offense involved illegal aliens. However, Lopez was charged with conspiracy to transport aliens, not with the completed offense of alien smuggling. The government did not need to prove that an alien actually “entered or remained in the United States in violation of the law.” United States v. Nolasco-Rosas, 286 F.3d 762, 765 (5th Cir.2002) (per curiam) (discussing elements of completed offense of alien smuggling).
IV. Rule 403 Challenge
Lopez challenges the admission of a spreadsheet from Western Union showing two wire transfers.3 As an evi-*254dentiary ruling, this is subject to review under the highly deferential abuse of discretion standard. United States v. Rice, 607 F.3d 133, 138 (5th Cir.2010). The spreadsheet shows fourteen wire transfers. Twelve of the transfers were sent to Antonio Nunez, and two were sent to Lisa Carter. The amounts of the transfers on the spreadsheet varied from $164.99 to $2,120, but most were around $1,500. Lopez raised an objection to the spreadsheet at trial under Federal Rule of Evidence 403. After conducting a Rule 403 balancing test on the record, the district court overruled the objection, concluding:
the probative value outweighs the prejudicial effect. In this particular case [the Western Union evidence] shows a relationship between the defendant and the co-[conspirators] that is something more than just an acquaintanceship. It shows an agency of sorts which is the heart of the conspiracy, that they acted in conjunction with each other for the movement of the aliens.
Granted there is not a specific element of “for financial gain” under conspiracy. [This evidence] however though can still be used as evidence to show that there was an agency relationship there.
Lopez argues on appeal that this ruling was an abuse of discretion.4
The spreadsheet was admitted during direct examination of Carter. Carter testified that she picked up the two wire transfers — one for $1,900 from Enrique Blanco Rodriguez and one for $1,500 from Estefano Alfaro. Carter testified that she did not know the people sending the transfers; that she picked up the transfers in her own name; that she received $50 for each transfer picked up in her name; and that the transfers were intended as prepayment to Lopez for delivering the aliens to their destination. Montes and Nunez also testified that Lopez paid them to pick up wire transfers in their names. As the district court noted, the evidence was relevant to show the relationship between the defendant and his co-conspirators and to show the existence of an agreement between the co-conspirators. Lopez fails to show undue prejudice stemming from this evidence, and the district court did not abuse its discretion in allowing evidence of the Western Union transfers.
V. Challenges to the Sentence
Lopez challenges his sentence on two grounds: first, he contends that the district court improperly calculated his base offense level by relying on two improper factual findings; and second, he argues that his sentence was unreasonable given *255the disparity between his sentence (70 months) and his co-conspirators’ sentences (24 months and 27 months).
1. Factual Findings
We review the district court’s application of the United States Sentencing Guidelines (“U.S.S.G.” or the “Guidelines”) de novo and its factual findings for clear error. United States v. Williams (Williams IV), 610 F.3d 271, 291-92 (5th Cir.2010). “A factual finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. Castillo, 430 F.3d 230, 238 (5th Cir.2005) (internal quotation marks omitted). “A sentencing court’s factual findings must be supported by a preponderance of the evidence.” United States v. Chavez, 119 F.3d 342, 349 (5th Cir.1997) (per curiam).
In determining Lopez’s base offense level, the district court found that (1) the conspiracy involved the transportation of 100 or more illegal aliens under U.S.S.G. '§ 2L1.1(b)(2)(C) and (2) Lopez was “an organizer or leader of a criminal activity that involved five or more participants” under U.S.S.G. § 3Bl.l(a). Lopez objected to both factual findings at the sentencing hearing, and the district court overruled his objections. Accordingly, the district court assigned a nine-level enhancement under § 2Ll.l(b)(2)(C) and a four-level enhancement under § 3Bl.l(a), ultimately calculating a Guidelines range of 70 to 87 months. The district court sentenced Lopez to 70 months’ imprisonment.
As to the finding that the conspiracy involved more than 100 aliens, Lopez argues that the district court improperly relied on the Presentence Investigation Report (PSR), as the PSR allegedly conflicted with testimony given at trial about the number of aliens involved in the conspiracy. Specifically, he argues that Montes’s trial testimony conflicted with her statement to the probation officer, and that Carter testified only to being involved personally in the transportation of 75 aliens.
Section 2Ll.l(b)(2) applies “ ‘[i]f the offense involved the smuggling, transporting, or harboring of six or more unlawful aliens,’” Williams IV, 610 F.3d at 292 (quoting U.S.S.G. § 2Ll.l(b)(2)(C)) and it “provides for different level increases depending on the number of unlawful aliens smuggled, transported, or harbored.” Id. “[A] six-level enhancement applies if the number is 25 to 99, and a nine-level enhancement applies if the number is 100 or more.” Id. (internal citations omitted). The district court did not clearly err in applying the nine-level enhancement. While it is true that Carter testified that she only saw around 75 people who had been smuggled in, Carter specified this was only during a three-month period. Carter did not work for Lopez for as long as Montes and Nunez did. Montes testified that groups of fifteen to twenty aliens would come to her house about once a month during the time she worked for Lopez (from 2005 to 2008). There was some uncertainty about exactly how many aliens Montes helped Lopez transport, as Montes independently helped transport aliens prior to her interactions with Lopez. Nunez testified that he transported aliens on 12 or 13 occasions before Carter started working for Lopez, with approximately 18 to 21 people on each load. In addition, Nunez testified that he transported an additional three loads of aliens after Carter *256began working. The testimony of both Montes and Nunez supports the district court’s finding that more than 100 aliens were transported.5 Given the time period that Carter was involved in the conspiracy, her testimony that 75 aliens were transported does not make the district court’s finding clearly erroneous. The nine-level enhancement under § 2Ll.l(b)(2) was not improper.
As to the finding that Lopez played a leadership role in the conspiracy, Lopez argues that there is no support for the district court’s finding that the conspiracy involved five participants.6 He concedes that there were four participants in the conspiracy — himself, Carter, Nunez, and Montes — but argues that no one else was involved. Under § 3Bl.l(a), a four-level enhancement is appropriate “[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.” The comments to the Guidelines define a “participant” as “a person who is criminally responsible for the commission of the offense, but need not have been convicted. A person who is not criminally responsible for the commission of the offense (e.g., an undercover law enforcement officer) is not a participant.” U.S.S.G. § 3B1.1 cmt. n. 1. The sentencing court may count the defendant as one participant. United States v. Barbontin, 907 F.2d 1494, 1498 (5th Cir.1990).
At trial, Carter testified that on the day she was arrested, she was working -with Nunez, Montes, Sandra Campos (Lopez’s girlfriend), Rosalinda Quintero (also referred to in the record as Rosalina Garza-Quintero and as Rosalinda Garza), and two of Montes’s nephews. Nunez testified that Lopez’s brother helped deliver aliens to their destinations on at least one occasion. Nunez also testified that Sandra Campos was involved in one specific trip with him and that he split his payment for that trip with her. In addition to this information detailed at trial, the PSR added that Lopez’s brother, Armando, had transported four aliens to Lopez’s house.7 Given this evidence, adduced both at trial and in the PSR, the trial court was not clearly erroneous in concluding that five or more individuals were involved in the conspiracy to transport aliens. The four-level enhancement under § 3Bl.l(a) was not improper.
2. Reasonableness of Sentence
We consider the substantive reasonableness of a Guidelines sentence under an abuse of discretion standard. United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir.2008). A Guidelines sentence is entitled to a presumption of reasonableness. Id. Lopez complains that the district court did not consider the sentencing factors listed in 18 U.S.C. § 3553(a) — specifically, that Lopez’s 70-month sentence was an “unwarranted ... disparity]” under *257§ 3553(a)(6) from Montes’s and Carter’s sentences (27 and 24 months, respectively).
It is true that if a similarly situated defendant receives a lesser sentence, a defendant may be able to establish substantive unreasonableness based on an unwarranted disparity in sentences. See United States v. Armstrong, 550 F.3d 382, 406 (5th Cir.2008). Here, as the district court noted in response to Lopez’s objection at sentencing, Lopez was not similarly situated with Montes and Carter for several reasons. Lopez insisted on taking the case to a jury trial, while Montes and Carter pled guilty and testified for the government, thereby receiving downward departures for acceptance of responsibility and substantial assistance to authorities. See United States v. Duncan, 919 F.2d 981, 992 (5th Cir.1990) (“Defendants who enter into plea bargains agree to cooperate with the government in exchange for a known result that they consider favorable. They are in an entirely different position from those who submit their cases to a jury and take their chances on the jury’s decisions.”). As discussed above, Lopez received 13 total levels in enhancement for his role as leader or organizer and for having transported over 100 aliens — enhancements that Montes and Carter did not receive. Lopez argues that because he did not have a criminal history, while both Carter and Montes did, his sentence should have been closer to theirs. However, the district court was entirely within its discretion in determining that Lopez was not similarly situated with Montes and Carter. See United States v. Candia, 454 F.3d 468, 473 (5th Cir.2006) (according “great deference” to within-Guidelines sentence). Therefore, the disparity between sentences was not unwarranted, the district court did not abuse its discretion, and Lopez’s sentence is not substantively unreasonable.
VI. Conclusion
For the. reasons discussed above, we AFFIRM Lopez’s conviction and sentence.
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 relevant statutory text reads:
Any person who—
(i) knowing that-a person is an alien, brings to or attempts to bring to the United States in any manner whatsoever such person at a place other than a designated port of entry or place other than as designated by the Commissioner, regardless of whether such alien has received prior official authorization to come to, enter, or reside in the United States and regardless of any future official action which may be taken with respect to such alien; [or]
(v)(I) engages in any conspiracy to commit any of the preceding acts ...
shall be punished as provided in subpara-graph (B).
8 U.S.C. § 1324(a)(1)(A)
. United States v. Avila-Dominguez, 610 F.2d 1266, 1271 (5th Cir.1980), held that an overt act was required, and that case was followed in United States v. Valles-Zamora, 252 Fed.Appx. 701, 704 (5th Cir.2007) (per curiam). However, Avila-Dominguez was decided before the conspiracy provision was added to § 1324 in 1996; at the time of decision, offenses of conspiracy to violate § 1324 were charged under 18 U.S.C. § 371, the general conspiracy statute. Several other unpublished Fifth Circuit cases have required an overt act. See United States v. Aguirre, 354 Fed.Appx. 916, 918 (5th Cir.2009) (per curiam); United States v. Rodriguez, 353 Fed.Appx. 890, 893 (5th Cir.2009) (per curiam); United States v. Valerio-Santibanez, 81 Fed.Appx. 836, 838 (5th Cir.2003) (per curiam); United States v. Castro-Hernandez, 205 F.3d 1337, 1999 WL 1338382, at *3 (5th Cir.1999) (per curiam) (unpublished table opinion). We have never directly addressed the impact of the 1996 amendment or of the subsequent Supreme Court decisions discussed above. However, we do not need to resolve this question today, as the record clearly shows that the government offered proof of more than one overt act taken by Lopez and his co-conspirators in furtherance of the agreement to transport aliens.
. Lopez also argues that the district court erred in admitting a transcript of a recorded telephone call between "Cuco” and Nunez. The recording was entirely in Spanish; the transcript translates the recording into English. When indicating the speakers, the transcript substitutes "Lopez” (the defendant’s last name) for "Cuco” (his nickname). Lopez contends that this substitution prevents the transcription for being an accurate, word-for-word translation of the recording. The district court admitted the transcript over Lopez's objection as an aid to the jury, not as substantive evidence, and gave a limiting in*254struction to this effect. However, Lopez has inadequately briefed this issue. He offers only one citation to case law dealing with translations. That single case, Valladares v. United States, 871 F.2d 1564 (11th Cir.1989), involved a translator appointed to aid a non-English-speaking defendant to understand his trial proceedings. Lopez does not cite any case law dealing with the admissibility of tapes or transcripts. As a result, he has waived this argument. See United States v. Stalnaker, 571 F.3d 428, 439-40 (5th Cir.2009) (holding that defendant's failure to provide citations to relevant case law constituted waiver for failure to adequately brief).
. Lopez also attempts to argue that the district court constructively amended the indictment by allowing evidence of the wire transfers, because the indictment did not allege that he joined the conspiracy for purposes of financial gain. However, Lopez, who is represented by appointed counsel, fails to adequately brief this point. He states the legal standard but offers no further arguments or explanation. Therefore, this argument is waived. See United States v. Reagan, 596 F.3d 251, 254-55 (5th Cir.2010).
. The district court did not rely on the PSR's finding that 459 aliens were transported, but rather calculated independently that more than 100 aliens were transported.
. Lopez does not contest the finding that he did, in fact, play a leadership role in the conspiracy.
. The PSR is "considered reliable and may be considered as evidence by the trial judge when making sentencing determinations.” United States v. Vital, 68 F.3d 114, 120 (5th Cir.1995) (citing United States v. Lghodaro, 967 F.2d 1028, 1030 (5th Cir.1992)). "Furthermore, if no relevant affidavits or other evidence is submitted to rebut the information contained in the PSR, the court is free to adopt its findings without further inquiry or explanation.” Id.; accord United States v. Cabrera, 288 F.3d 163, 173-74 (5th Cir.2002) (per curiam). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480579/ | PER CURIAM: *
Kayode Rufus Fajemisin, a native and citizen of Nigeria, filed a petition for review of the Board of Immigration Appeals’ (“BIA”) July 31, 2009 decision dismissing his appeal of the immigration judge’s (“IJ”) denial of his request for a continuance. As the respondent argues, Fajemisin did not file a separate petition for review of the BIA’s denial of his motion to reconsider. See Guevara v. Gonzales, 450 F.3d 173, 176 (5th Cir.2006); Stone v. INS, 514 U.S. 386, 394-95, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995). Accordingly, this court lacks jurisdiction to review the BIA’s denial of that motion.
*288Fajemisin challenges the IJ’s denial of a continuance, arguing that he appeared before the IJ in good faith requesting a continuance to seek adjustment of status, which would be available to him following the adjudication of his spouse’s second I-130 immigrant visa petition. He contends that because his spouse was not precluded from filing a second 1-130 petition, his spouse should have been afforded a reasonable opportunity to have the petition adjudicated. Fajemisin argues that, in light of the factors identified by the BIA in In re Hashmi, 24 I. & N. Dec. 785, 790-91 (BIA 2009), the IJ’s denial of a continuance cannot be supported.
The grant of a motion to continue lies within the sound discretion of the IJ, who may grant the motion for good cause shown. Witter v. INS, 113 F.3d 549, 555 (5th Cir.1997). We review for an abuse of discretion. See id. “Neither the BIA nor the IJ abuses its discretion ‘so long as [the decision] is not capricious, racially invidious, utterly without foundation in the evidence, or otherwise so aberrational that is it arbitrary rather than the result of any perceptible rational approach.’ ” Galvez-Vergara v. Gonzales, 484 F.3d 798, 801 (5th Cir.2007) (citing Osuchukwu v. INS, 744 F.2d 1136, 1142 (5th Cir.1984)).
When assessing whether a continuance should be granted to await the final adjudication of a pending visa petition, “the focus of the inquiry is the apparent ultimate likelihood of success on the adjustment application,” and “it is useful for the Immigration Judge to evaluate the viability of the underlying 1-130.” Hashmi, 24 I. & N. Dec. at 790-91; see Hing Gimen Wu v. Holder, 571 F.3d 467, 469-70 (5th Cir.2009) (noting that in Hashmi, the BIA “recognized that an IJ cannot rely solely on timing concerns and provided its first detailed guidance of how an IJ should analyze a motion for continuance when a prima facie approvable 1-130 petition is pending”). As the BIA observed in Hashmi, “[if] other visa petitions filed on the respondent’s behalf have been denied, those petitions and the USCIS’s determinations could also be presented and considered. These prior filings or other evidence of potential fraud or dilatory tactics may impact the viability of the visa petition underlying the motion.” Hashmi, 24 I. & N. Dec. at 792. The IJ’s oral decision reveals that the denial of a continuance was based on the IJ’s. assessment of the viability of the then-pending 1-130 petition, which was considered in light of the Government’s denial of the earlier-filed 1-130 petition. The Government’s denial of the first 1-130 petition on grounds of marriage fraud was, therefore, evidence that the pending 1-130 petition was not likely to be approved. See id.
Fajemisin has shown no abuse of discretion in the BIA’s dismissal of his appeal of the IJ’s denial of a continuance. See Witter, 113 F.3d at 555. The 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 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/8480581/ | PER CURIAM: *
The attorney appointed to represent Elvin Winston Ricks has moved for leave to *319withdraw 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). Ricks has filed a response and motion to strike the Anders brief. Our independent review of the record, counsel’s brief, and Ricks’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. Ricks’s motion to strike the Anders brief is DENIED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be *319published 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/8480582/ | ORDER
Vincent Lowe pleaded guilty under a plea agreement to possessing with intent to distribute 50 grams or more of crack cocaine. See 21 U.S.C. § 841(a)(1). In the plea agreement, Lowe waived his right to appeal his conviction and any sentence of 327 months’ imprisonment or less. In exchange, the government refrained from filing an information under 21 U.S.C. § 851 regarding Lowe’s prior felony convictions, which would have mandated a minimum sentence of life under 21 U.S.C. § 841(b)(1)(A). Lowe was sentenced to 240 months. He filed a notice of appeal, but his appointed lawyers seek to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because they cannot identify any nonfrivo-lous argument to pursue. We limit our review to the potential issues in counsel’s facially adequate brief and Lowe’s response to his lawyers’ motion. See CIR. R. 51(b); United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
The district court computed the guidelines range as follows. Three prior felony convictions — two for crack possession and one for victim intimidation — qualified Lowe as a career offender under U.S.S.G. § 4B1.1. And because his new crime involved 50 or more grams of crack and thus carried a possible life sentence, see 21 U.S.C. § 841(b)(1)(A)(.iii), application of the career-offender guideline meant an offense level of 37, or 34 after a three-level reduction for acceptance of responsibility. See U.S.S.G. §§ 3El.l(a)-(b), 4Bl.l(b). That offense level, coupled with the criminal history category of VI mandated by the career-offender guideline, yielded an imprisonment range of 262 to 327 months. See U.S.S.G. § 4Bl.l(b), Ch. 5 Pt. A.
At sentencing, Lowe urged the district court to disregard the career-offender guideline based on a disagreement with the differences in imprisonment ranges for offenders involved with crack versus those involved with like amounts of powder cocaine. The district court rejected that argument, a ruling in.accord with United States v. Welton, 583 F.3d 494 (7th Cir.2009), which prohibited district judges from disagreeing with the career-offender guidelines on the ground that Lowe urged. We decided Welton after Lowe entered his *478plea agreement, but it controlled at the time of his sentencing and remained in force until we overruled it four months after his sentencing in United States v. Corner, 598 F.3d 411 (7th Cir.2010). Despite the constraint of Welton, the district court exercised its sentencing discretion under 18 U.S.C. § 3553(a) to impose a sentence 22 months below the bottom of the advisory range, explaining that such a sentence was no longer than necessary to accomplish the purposes of sentencing.
In their Anders brief, counsel tell us that Lowe does not want his guilty plea set aside; for that reason, they do not consider a challenge to the plea’s voluntariness. See United States v. Knox, 287 F.3d 667, 671 (7th Cir.2005). Lowe’s Rule 51(b) response, however, suggests that he wishes to rescind his appeal waiver and challenge his sentence in light of the parties’ “mutual” mistake at sentencing about Welton’s limits on a court’s sentencing discretion. Yet he also wishes to leave his guilty plea intact to avoid the risk of a mandatory life sentence. But a challenge to just the appeal waiver would be frivolous because Lowe may not “perform surgery on his plea agreement, excising only ... the waiver of his right to appeal.” United States v. Sura, 511 F.3d 654, 655 (7th Cir.2007). The appeal waiver is valid if the plea agreement stands, and the plea agreement stands if, as is the case, Lowe does not want to discard his plea of guilty and lose the benefit of avoiding a mandatory life sentence. See Knox, 287 F.3d at 671.
With the plea agreement intact, counsel and Lowe consider whether they could nonetheless argue that, with Welton now overruled by Corner, the district court erred by concluding that it lacked discretion to disagree with the career-offender guideline’s different treatment of those caught with like amounts of crack and powder cocaine. But counsel properly conclude that such a challenge — like any challenge to the sentence — would be foreclosed by the appeal waiver. Because the guilty plea stands, so does the appeal waiver, which necessarily precludes the argument that Comer requires resentencing. See Nunez v. United States, 546 F.3d 450, 453 (7th Cir.2008).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS Lowe’s appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480584/ | ORDER
A jury in Milwaukee, Wisconsin, found Darin Bowie guilty on multiple counts of trafficking cocaine. See 21 U.S.C. §§ 841(a)(1), 846. Bowie was sentenced to a total of 235 months’ imprisonment and 5 years’ supervised release. He filed a notice of appeal, but his appointed lawyer has concluded that the case is frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We review only the potential issues identified in counsel’s facially adequate brief, see United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002), and in Bowie’s response, see Cik. R. 51(b).
In his Anders submission, counsel first evaluates whether Bowie could argue that the delay in bringing him to trial violated the Speedy Trial Act, 18 U.S.C. §§ 3161-74. But by failing to seek dismissal on this ground in the district court, Bowie waived his right to enforce the Act’s time limit. See id. § 3162(a)(2); United States v. Gearhart, 576 F.3d 459, 462 (7th Cir.2009). His waiver precludes us from applying even plain-error review, see United States v. Broadnax, 536 F.3d 695, 699 (7th Cir.), cert. denied, — U.S. -, 129 S.Ct. 665, 172 L.Ed.2d 638 (2008), so any argument under the Speedy Trial Act would be frivolous.
Counsel next questions whether Bowie could challenge the jury’s verdict on the one conspiracy count as lacking eviden-tiary support. (Bowie received fully concurrent sentences on all counts, but after Ray v. United States, 481 U.S. 736, 107 S.Ct. 2093, 95 L.Ed.2d 693 (1987), a court of appeals cannot use the concurrent-sentence doctrine to bypass this question, see United States v. Moon, 512 F.3d 359, 363 (7th Cir.2008).) The government charged that Bowie conspired with five others to distribute cocaine. One of the five, Calvin Coleman, testified that he sold Bowie four- and-a-half ounces of cocaine on a weekly basis for about a year. Coleman said he occasionally “fronted” the drugs, which he defined as making delivery without demanding immediate payment. Coleman acknowledged, however, that he did not advise or supervise Bowie, nor did he impose quotas on the amounts of cocaine that Bowie could or must move. Coleman emphasized that he viewed Bowie as a mid-level customer and “his own man.” Several other witnesses testified that Bowie had sold them cocaine using coded language and knew that they resold the drugs. All of them conceded, though, that Bowie demanded payment up front and was not their only source of supply.
We would view the evidence in the light most favorable to the government and uphold the verdict if any rational jury could have found the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Mitten, 592 F.3d 767, 776 (7th Cir.2010). To convict Bowie on the § 846 count, the government was required to establish that he knowingly agreed with at least one other person to possess cocaine for distribution. See United States v. Taylor, 600 F.3d 863, 868 (7th Cir.2010); United States v. Avila, 557 F.3d 809, 814 (7th Cir.2009). Hallmarks of a conspiracy include, among other things, sales on consignment or credit. E.g., United States v. Dean, 574 F.3d 836, 843 (7th Cir.2009); United States v. Colon, *483549 F.3d 565, 569 (7th Cir.2008); United States v. Bender, 539 F.3d 449, 454 (7th Cir.2008), cert. denied, — U.S. -, 129 S.Ct. 2415, 173 L.Ed.2d 1320 (2009); Moon, 512 F.3d at 364. Here, the “fronting” described by Coleman was a sale on credit. (Consignment sales permit the middleman to return unused drugs and are quintessential evidence of a conspiracy, see United States v. Johnson, 592 F.3d 749, 755 n. 5 (7th Cir.2010), but there is no evidence that Bowie could return the drugs.) Not all credit sales will support an inference that seller and buyer have reached an agreement to distribute drugs. Johnson, 592 F.3d at 756 n. 5. But evidence of credit sales “coupled with certain characteristics inherent in an ongoing wholesale buyer-seller relationship,” e.g., large quantities of drugs or repetitive transactions, is sufficient to distinguish a conspiracy from a nonconspiratorial buyer-seller relationship. Id. Coleman testified that he sold a specific amount of cocaine to Bowie on credit every week for almost a year, and thus we agree with appellate counsel that it would be frivolous to argue that no rational jury could have found that the two men were conspirators. See United States v. Fouse, 578 F.3d 643, 649-50 (7th Cir.2009) (upholding jury’s verdict that he engaged in conspiracy where defendant bought on credit, worked with others to sell drugs, and coordinated prices); United States v. Fuller, 532 F.3d 656, 662-63 (7th Cir.2008) (upholding conspiracy conviction where defendant bought from dealer on steady basis every week or two over five-month relationship, used code words to discuss types and amounts of drugs, and bought on credit).
As far as sentencing, counsel and Bowie (in his Rule 51(b) response) consider arguing that it was clear error to assign a drug quantity of 15 to 50 kilograms of cocaine. See, e.g., United States v. Vaughn, 585 F.3d 1024, 1031 (7th Cir.2009), cert. denied, — U.S. -, 130 S.Ct. 3385, 177 L.Ed.2d 306 (2010). But any argument about the quantity finding would be frivolous because after he was arrested, Bowie confessed to selling half a kilogram per week for 18 months. See United States v. Johnson, 342 F.3d 731, 734 (7th Cir.2003) (explaining that drug dealer’s post-arrest statements are especially reliable in establishing the extent of trafficking).
In his Rule 51(b) response, Bowie proposes to argue that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), required the jury to decide the amounts of cocaine involved. But this argument would be frivolous because Bowie was sentenced below the 20-year default maximum that applies for any amount of cocaine. See United States v. Clark, 538 F.3d 803, 811-12 (7th Cir.2008), cert. denied, — U.S. -, 129 S.Ct. 1613, 173 L.Ed.2d 994 (2009); United States v. Gilmer, 534 F.3d 696, 704 (7th Cir.2008).
Counsel also considers whether Bowie could challenge the increase in offense level for possessing a gun, see U.S.S.G. § 2Dl.l(b)(l), or the upward adjustment for obstructing justice, see id. § 3C1.1. Bowie’s counsel did not object to either adjustment at sentencing, so our review would be for plain error. See, e.g., United States v. Jumah, 599 F.3d 799, 811 (7th Cir.2010). Bowie asserts in his Rule 51(b) response that he didn’t own or even know about the gun police found in his living-room closet. He points to the trial testimony of Melvin Barnes, a defense witness who said he put the gun in the closet while temporarily living with Bowie. Ownership is irrelevant, though, and Barnes conceded that he never saw the gun again after placing it in the closet. On the other hand, two police officers who searched Bowie’s house with his consent testified at *484trial that he alerted them he had a gun in the living-room closet. The officers found the gun- (with an obliterated serial number) in that closet along with 148 grams of cocaine, $20,000 in currency, and a scale. Thus, an appellate challenge to the upward adjustment for the gun would be frivolous. See United States v. Are, 590 F.3d 499, 526 (7th Cir.2009), petition for cert. filed, 78 U.S.L.W. 3590 (Mar. 30, 2010) (No. 09-1191); United States v. Perez, 581 F.3d 539, 546-47 (7th Cir.2009); United States v. Rollins, 544 F.3d 820, 837-38 (7th Cir.2008), cert. denied, — U.S. -, 130 S.Ct. 3343, 176 L.Ed.2d 1236 (2010).
Further, among the nonexhaustive list of conduct constituting obstruction of justice is “threatening, intimidating, or otherwise unlawfully influencing a co-defendant.” U.S.S.G. § 3C1.1, cmt. n. 4(a). The district court applied the upward adjustment because Bowie sent a letter to a codefendant warning him not to cooperate. (Bowie insists in his Rule 51(b) response that he was simply “telling or asking” his codefendant to exercise his constitutional right to trial by jury.) We agree with counsel that it would be frivolous to argue that the district court’s conclusion that Bowie unlawfully attempted to influence his codefendant was clearly erroneous. See United States v. Richards, 198 F.3d 1029, 1032-33 (7th Cir.2000) (upholding application of § 3C1.1 adjustment where defendant warned codefendant to keep quiet).
Last, in his Rule 51(b) response, Bowie argues that under Melendez-Diaz v. Massachusetts, — U.S. -, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), he was entitled to cross-examine the chemists who analyzed the cocaine recovered from his home. But this argument is frivolous because Bowie stipulated at trial to the drug type and quantity. See id. at 2534 n. 3, 2541, 129 S.Ct. 2527; see also United States v. Wingate, 128 F.3d 1157, 1160-61 (7th Cir.1997).
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/8480588/ | ORDER
Robert Huff gave up his law practice and joined an established network that was growing marijuana on the west coast and selling it in Chicago and Milwaukee. The group was already under investigation when Huff became involved, and within a few months he and 30 others had been arrested by federal authorities. Huff pleaded guilty to conspiracy to possess and distribute marijuana, see 21 U.S.C. §§ 846, 841(a)(1), and stipulated that at least 1,000 kilograms could be attributed to the network. That amount ordinarily would trigger a 10-year minimum sentence, id. § 841(b)(l)(A)(vii), but the district court concluded that Huff was eligible for the “safety valve” and sentenced him to 24 months, see 18 U.S.C. § 3553(f). Huff filed a notice of appeal, but his appointed lawyer has concluded that the case is frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Huff opposes counsel’s motion. See Cir. R. 51(b). We review only the potential issues identified in counsel’s facially adequate brief and Huffs response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
*496Appellate counsel first questions whether Huff could challenge the voluntariness of his guilty plea or the adequacy of the plea colloquy. See Fed. R. Crim. P. 11(b). This discussion should have been omitted; Huffs lawyer represents that Huff seeks only to lower his prison term, so counsel should not be contemplating claims designed to undermine Huffs guilty plea. See United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002).
Counsel also assesses whether Huff might argue that it was clear error to deny him a two-level downward adjustment as a minor participant in the conspiracy; Huff proposes the same argument in his Rule 51(b) response. See U.S.S.G. § 3B1.2(b); United States v. Munoz, 610 F.3d 989, 993 (7th Cir.2010). The district court found that Huffs role wasn’t minor because, although he joined only 4 months before authorities broke up the drug ring, during that time he distributed 108 pounds of marijuana, traveled to California to negotiate a better price for a favored buyer, and allowed the head of the growing operation to use his Indiana vacation home while supervising the delivery of a load from the west coast. We agree with counsel that it would be frivolous to challenge the district court’s decision as clearly erroneous. See United States v. Lopez, 545 F.3d 515, 517 (7th Cir.2008); United States v. Gonzalez, 534 F.3d 613, 617 (2008); United States v. Gallardo, 497 F.3d 727, 741 (7th Cir.2007).
Huff also proposes to argue that his total offense level should have been 15, not 17 as calculated by the district court. The court counted as relevant conduct only the 108 pounds of marijuana that Huff personally distributed (while discounting another 235 pounds that he stashed—unwittingly, he says—in his Chicago condominium). That quantity yielded a base offense level of 20. See U.S.S.G. § 2Dl.l(a)(3), (c)(10). The court subtracted two levels because of the safety valve, see id. § 2Dl.l(b)(ll), and three more for acceptance of responsibility, see id. § 3E1.1. Those adjustments would have reduced the total to 15, except that for defendants like Huff, who otherwise face a minimum of five years in prison, “the offense level applicable from Chapters Two (Offense Conduct) and Three (Adjustments) shall be not less than level 17.” Id. § 5C1.2(b)(2); see United States v. Jackson, 493 F.3d 1179, 1180 n. 2 (10th Cir.2007); United States v. Keresztury, 293 F.3d 750, 758-59 (5th Cir.2002). Thus, a claim that the offense level is overstated would be frivolous.
Counsel and Huff also contemplate challenging the length of the prison term. The sentence is within the guidelines range and thus presumed to be substantively reasonable, Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005), and counsel has not thought of a reason to disturb that presumption. At Huffs urging, however, appellate counsel has considered arguing that the district court, in selecting a 24-month sentence, disregarded the directive of 18 U.S.C. § 3553(a)(6) to avoid “unwarranted sentencing disparities” among similar offenders. See.Gall v. United States, 552 U.S. 38, 54-56, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Statham, 581 F.3d 548, 556 (7th Cir.2009). Huff had urged the court to place him on probation like two of his codefendants, and since instead he was sent to prison he assumes that the court must have ignored subsection (a)(6). But a court that sentences within a properly calculated guidelines range necessarily gives weight and consideration to avoiding unwarranted disparities. See Gall, 552 U.S. at 54, 128 S.Ct. 586 (2007); United States v. Turner, 604 F.3d 381, 389 (7th *497Cir.2010); United States v. Pulley, 601 F.3d 660, 668 (7th Cir.2010). And “Mottling is more common than for codefendants to receive different sentences.” United States v. Gammicchia, 498 F.3d 467, 469 (7th Cir.2007). We agree with counsel that this claim would be frivolous.
Huff also asserts, in his Rule 51(b) response, that the sentence is tarnished by a broken promise to tell the sentencing court about the nature and extent of his cooperation. Huff is correct that the prosecutor never recited this term of the plea agreement at sentencing, but the government did acknowledge that he cooperated, with agents after his arrest and further debriefed after he was indicted. Twice the prosecutor assured the district judge that Huff had done what was necessary to benefit from the safety valve, which shaved eight years from his sentence. See 18 U.S.C. § 3553(f)(5); U.S.S.G. § 5C1.2(a)(5); United States v. Corson, 579 F.3d 804, 814 (7th Cir.2009), cert. denied, — U.S. -, 130 S.Ct. 1751, 176 L.Ed.2d 221 (2010); United States v. Nagel, 559 F.3d 756, 760 (7th Cir.2009). The prosecutor, moreover, contradicted nothing that Huff or his lawyer said during allocution about his continuing cooperation in other investigations, and immediately afterward the prosecutor recommended a below-range prison sentence. The district court was fully informed, and so a claim that the prosecutor breached the plea agreement would be frivolous. See United States v. Riggs, 287 F.3d 221, 225 (1st Cir.2002); United States v. Pryor, 957 F.2d 478, 481-82 (7th Cir.1992); United States v. Hooten, 942 F.2d 878, 883-84 (5th Cir.1991).
Huff raises several other points in opposition to counsel’s motion to withdraw, including his belief that all of his lawyers in the district court and in this court have been deficient. We have said often that a claim of ineffective assistance is best raised on collateral review where a complete record can be developed, and this case is no different. 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). The remainder of Huffs contentions have been considered and do not undermine our agreement with' appellate counsel that this appeal is frivolous.
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/8480591/ | PER CURIAM:
Richard L. Rosenbaum, appointed counsel for Mark Joseph Harvey in this direct criminal appeal,, 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 *753Harvey’s convictions and sentences are AFFIRMED.1
. Our affirmance of Harvey's convictions and sentences shall not inhibit the district court’s plenary consideration of any Sixth Amendment claims that may be raised by 28 U.S.C. § 2255 motion to vacate, based on counsel’s representation in the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480592/ | ON MOTION
ORDER
Genetics Institute, LLC (Genetics) moves for clarification of the court’s order granting its motion for an extension of time.
Upon consideration thereof,
It Is Ordered That:
The motion for clarification is granted. The briefing schedule is stayed pursuant to Fed. Cir. R. 31(c). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480593/ | JUDGMENT
PER CURIAM.
This Cause having been heard and considered, it is
Ordered and Adjudged:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480594/ | OPINION
PER CURIAM.
Jean Joseph, a citizen of Haiti who fled Haiti by boat in 1992, was interdicted at sea shortly thereafter, and transferred to the United States where he applied immediately for asylum based on his participation as an early follower and active political supporter of former President Ar-istide. In 1999, Joseph was convicted in federal district court in Florida of conspiracy to possess with intent to distribute cocaine base and possession with intent to distribute cocaine base under 21 U.S.C. §§ 846 and 841(a)(1).1 He completed his sentence in December 2007, and in May 2007, the Government served Joseph with a Notice to Appear, charging him as removable based on his felony drug convictions and on his entry into the country without a valid entry document.
Joseph conceded his ineligibility for asylum and withholding of removal, but applied for protection under the United Nations Convention Against Torture (“CAT”). In addition to his own testimony, Joseph presented three other witnesses: Robert Stein, Ph.D., a clinical psychologist; Michelle Karshan, founder and Executive Director of Alternative Chance, a nonprofit organization dedicated to assisting criminal deportees to Haiti; and Brian Concannon, Esq., Director of the Institute for Justice & Democracy in Haiti. Together, their testimony indicated that Joseph was beaten severely for his activity in the Lavalas Party and Aristide’s political movement in 1991; if he was returned to Haiti, he would be placed in a detention center or prison as a criminal deportee; he would risk extortion in a generally corrupt prison system; he would risk physical abuse by prison guards because of his mental illness and physical abuse on account of his political beliefs by prison guards who are former Anti-Aristide military officers and insurgents; and that, in the event he is released into the general Haitian population, he will face a “significant possibility” that he will be tortured by members of the National Police Force who are former anti-Aristide military members and insurgents. In addition to other documentary evidence, Joseph submitted affidavits from his wife, his *936brother-in-law, and three friends who currently live in Haiti.
The IJ denied CAT relief and ordered Joseph removed to Haiti. By decision dated April 30, 2009, the Board of Immigration Appeals (“BIA”) affirmed the IJ’s decision. Although the IJ discredited Joseph’s testimony, the BIA did not base its determination on the IJ’s adverse credibility determination. The BIA agreed with the IJ, however, that Joseph failed to present sufficient evidence demonstrating that it is more likely than not that he would be tortured by government officials or persons acting on them behalf and that he did not demonstrate that he would be personally at risk. Among other things, the BIA determined that Joseph’s mental illness claim was distinguishable from other ' cases that involved aliens who were prone to violence and who suffered from more severe mental illnesses that made them ready targets for prison abuse. The Board also held that, although Joseph was tortured in 1991 because he was an Aris-tide supporter and member of the Lavalas Party, there was no “clear probability that after 17 years the respondent will be tortured for his previous support of Lavalas or Aristide.”
Joseph presents a petition for review, which the Government challenges primarily on jurisdictional grounds. Because the basis for Joseph’s removal is his conviction for an aggravated felony, our jurisdiction is limited by the REAL ID Act to constitutional claims and questions of law. See Pierre v. Attorney Gen., 528 F.3d 180, 184 (3d Cir.2008) (en banc) (citing 8 U.S.C. § 1252(a)(2)(C)-(D)); see also Silva-Rengifo v. Attorney Gen., 473 F.3d 58, 63 (3d Cir.2007) (relying on Kamara v. Attorney Gen., 420 F.3d 202, 210-11 (3d Cir.2005), for the proposition that the “jurisdictional grant regarding appeals by aggravated felons extends not just to legal determinations but also to application of law to facts”). We cannot revisit the factual findings in the record. Alaka v. Attorney Gen., 456 F.3d 88, 102 (3d Cir.2006). With respect to CAT claims, the question of the likelihood of torture is a mixed one, comprised of a factual component (“what is likely to happen to the petitioner if removed”) and a legal one (“does what is likely to happen amount to the legal definition of torture”). Kaplun v. Attorney Gen., 602 F.3d 260, 271 (3d Cir.2010). Joseph presents two legal questions: whether the BIA sufficiently reviewed all relevant evidence of torture under 8 C.F.R. § 1208.16(c)(3);2 and whether the BIA erred in determining that the evidence Joseph presented did not amount to torture as that term is defined under the law. Accordingly, this Court has jurisdiction to review his petition. See, e.g., Pierre, 528 F.3d at 184. We review the BIA’s legal decisions de novo. Kamara, 420 F.3d at 211.
Deferral of removal under the CAT is mandatory if an alien can show that it is more likely than not that he or she will be tortured. See Pierre, 528 F.3d at 186 (citing 8 C.F.R. § 208.17(a)). An act is torture if it is inflicted by or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity, for obtaining information or a confession, for punishment, for intimidation or coercion, or for any reason based on discrimination of any kind. See id. at 189. The imprisonment of criminal deportees in Haiti in objectively deplorable and harsh conditions generally does not constitute torture. Id. However, if author*937ities place an individual in such conditions in order to cause severe pain and suffering, such an act may rise to the level of torture, provided the other CAT requirements are met. Id. at 190. If the CAT claim relies on a series of suppositions, the petitioner must demonstrate that each hypothetical event in the chain is more likely than not to occur. See In re J-F-F-, 23 I. & N. Dec. 912, 917-18 & n. 4 (BIA 2006); see also Savchuck v. Mukasey, 518 F.3d 119, 123-24 (2d Cir.2008).
Joseph claims that the BIA failed to consider unrebutted evidence of past torture and existing country conditions that are “relevant to the possibility of future torture,” under 8 C.F.R. § 1208.16(c)(3).3 He notes, in particular, that there is no indication in the BIA’s opinion that the Board considered Concannon’s expert testimony, as well as evidence from various sources (including the State Department Country Report for Haiti, issued in March 2008) that chronicled human rights abuses in Haiti from 2004 through 2008, perpetrated in part by the Haitian National Police and armed anti-Lavalas groups. Joseph relies primarily on Zubeda v. Ashcroft, 333 F.3d 463, 477, 479 (3d Cir.2003) (holding that the BIA erred under 8 C.F.R. § 208.16(c)(3), when it “provid[ed] only a minimal analysis of Zubeda’s claim” and “cavalierly dismissed the substantial documentation of conditions in the DRC [Democratic Republic of Congo]”). (Pet. Br. at 22 (Awolesi v. Ashcroft, 341 F.3d 227, 232 (3d Cir.2003), and Sotto v. INS, 748 F.2d 832, 836 (3d Cir.1984).))
The BIA must provide sufficient detail to allow the reviewing court to discern the basis of its decision, but it is not obligated to address each piece of documentary evidence in its opinion. Toussaint v. Attorney Gen., 455 F.3d 409, 414 (3d Cir.2006); Zheng v. Attorney Gen., 549 F.3d 260, 268 (3d Cir.2008). Here, the Board provided enough detail for us to conduct a meaningful review of its denial of Joseph’s sole claim under the CAT. The BIA’s determination that Joseph failed “to present sufficient evidence” that he would be personally at risk of torture upon his return to Haiti indicates that the Board had considered all of the evidence of record. Toussaint, 455 F.3d at 415 (“BIA’s reference to ‘insufficient evidence’ indicates that it weighed the evidence and found it lacking....”).
Next, Joseph argues that the Board erred in ruling that the evidence presented regarding the likelihood of his torture in a Haitian detention center or prison did not. amount to the legal definition of torture. As the BIA noted, the basic conditions of detention in Haiti, although admittedly deplorable, do not amount to torture under the law. Pierre, 528 F.3d at 191. Joseph claims, however, that he will face personal risk of torture in. detention because he suffers from major depression and will be subject to physical abuse and inhumane living conditions for that reason. He relies on the expert Michelle Karshan’s testimony that mentally ill detainees may be singled out for physical abuse because of their bizarre behavior and inability to comply with prison rules, and Dr. Robert Stein’s report stating that, without the necessary treatment for his depression and other medical conditions, and absent humane living conditions in the *938Haitian prison or detention center, Joseph is likely to “simply curl up in a corner and not say anything at all.” (Pet. Br. at 29.)4 We conclude that this evidence, although deeply troubling, falls short of demonstrating torture as that term is defined under the law, because it fails to show the requisite specific intent on the part of the Haitian authorities. Pierre, 528 F.3d at 191; cf. Villegas v. Mukasey, 523 F.3d 984, 989 (9th Cir.2008) (holding that the conditions of the Mexican mental health system, which were created by “officials’ historical gross negligence and misunderstanding of the nature of psychiatric illness,” do not amount to torture for CAT purposes).
Joseph also claims that he will be tortured by prison officials in order to extort money from him and his family. As the BIA concluded, however, the prison guards’ extortion practices, and their disregard for the Haitian Supreme Court’s 2006 ruling rendering automatic detention of deportees unconstitutional, was not intended to torture the deportees, but rather to engage in widespread extortion for pecuniary gain and to preserve an unlawful source of revenue.5
Accordingly, we will deny the petition for review.6
. Joseph’s 1992 asylum application was not adjudicated after he was convicted.
. Joseph asserts that, despite the Government’s mischaracterization, his ‘‘all relevant evidence” claim is not a due process claim. ises Reply, at 4.) Hence, we will not address it under the Due Process Clause.
. In assessing whether it is more likely than not that an applicant would be tortured in the proposed country of removal, "all evidence relevant to the possibility of future torture shall be considered____" 8 C.F.R. § 1208.16(c)(3). "All relevant evidence” in-eludes "evidence of past torture as well as conditions in the country that would increase the likelihood of history repeating itself." Zubeda v. Ashcroft, 333 F.3d 463, 478 (3d Cir.2003).
. Joseph asserts that his case is similar to Lavira v. Attorney General, 478 F.3d 158 (3d Cir.2007), In re Zepherin, No. A45-481-814, at *8 (BIA Jan. 22, 2008), and Jean-Pierre v. Attorney General, 500 F.3d 1315 (11th Cir.2007). We disagree. Here, Michelle Kar-shan testified only that mentally ill deportees who call attention to themselves by their bizarre behavior or their noncompliance would be singled out for physical abuse by prison guards, and that otherwise, physical abuse, if any, would be random. (App. at 57a & 93a.)
. Even if we had jurisdiction to conduct a substantial evidence review as Joseph suggests, we could not conclude that a reasonable fact-finder would be compelled to find that the BIA’s denial of CAT relief was wrong. Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir.2004) (quoting 8 U.S.C. § 1252(b)(4)(B)).
.As a native of Haiti, Joseph may be able to remain in the United States despite the final order of removal if he applies for the temporary protected status made available after the earthquake earlier this year. See 75 Fed.Reg. 3476-79 (Jan. 21, 2010) (available online at http:// edocket.access.gpo.gov/2010/2010-1169.htm). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480595/ | OPINION
PER CURIAM.
Nilani Arulanantharasa seeks review of the Board of Immigration Appeals’ (“BIA”) February 26, 2009 order dismissing her administrative appeal and denying her motion to reopen. In the order, the BIA affirmed the Immigration Judge’s (“U”) decision to deny Arulanantharasa’s application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). For the reasons that follow, we will grant the petition for review in part, deny it in part, and remand the case for further proceedings consistent with this opinion.
I.
Arulanantharasa is a Tamil and a native of the Northern Province of Sri Lanka. She entered the United States without valid documents on April 1, 2007. She was later served with a Notice to Appear charging her with entering the country without inspection. She conceded remova-bility and filed petitions for asylum, withholding of removal, and relief under the CAT on grounds that she had been threatened and tortured while living in Sri Lan-ka and that, if she were to return, her life would be in danger on account of her ethnicity.
Three incidents gave rise to Arulanan-tharasa’s claim. First, in January 2003 she was detained by army officials. She claimed that the army suspected her of being a member of the Liberation Tigers of Tamil Eelam (“LTTE”). She was interrogated, threatened, and later released. After this incident, her mother arranged a marriage, which took place in India in July 2003. Her husband, also a native Sri Lan-kan, had been granted asylum in the United States. After the wedding, Arulanan-tharasa returned to Sri Lanka and her husband returned to the United States.
The second incident took place shortly after her return to Sri Lanka, in August *9572003. Arulanantharasa claims that her sister-in-law had come to visit her. During the visit, the two were arrested by army officials and taken to a camp. Arula-nantharasa claimed that the two were separated at the camp, and that she never heard from her sister-in-law again. Arula-nantharasa also claimed that she was interrogated, beaten, and burned with cigarettes. She was released three days later, but claimed that after her release, members of the LTTE questioned her about her visit to the army camp. They suspected her of being a government sympathizer and threatened to kill her if she had further contact with the army.
Arulanantharasa alleged that she was rounded up and questioned by the army and members of the Karuna1 group several times over the next four years. Then, in March 2007, she was again arrested and taken to the army camp. She claimed that she was beaten, threaten, tortured, and that two men attempted to rape her. She remained in the camp for thirteen days, until her mother bribed an official to secure her release. Her mother also made arrangements for Arulanantharasa to leave the country. On March 23, 2007, Arulanantharasa went to Colombo, Sri Lanka, and later to Singapore and Hamburg, and finally arrived in the United States on April 1, 2007.
To support .her claims, Arulanantharasa submitted a letter written by her mother that briefly described the three incidents. In addition, she submitted an affidavit from her husband that stated that she had entered the .United States on April 1, 2007. On December 26, 2007, the IJ made an adverse credibility determination and denied all relief. The IJ identified inconsistencies between Arulanantharasa’s testimony and her asylum application, and important omissions from her mother’s letter.
Arulanantharasa filed a notice of appeal with the BIA as well as a motion to reopen and remand. Upon review, the BIA dismissed the appeal and denied the motion to reopen and remand. Arulanantharasa filed a timely petition for review of the BIA’s decision.
II.
This Court has authority to review final orders of removal. See 8 U.S.C. § 1252(a). “[W]hen the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). The BIA’s factual determinations are 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). We review an adverse credibility determination under the substantial evidence standard. Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.2004). Under this deferential standard of review, this Court must uphold a credibility determination unless “any reasonable adjudicator would be compelled to conclude to the contrary.” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002) (quoting INA § 242(b)(4)(B)).2
*958In her opening brief, Arulanantharasa argues that the IJ’s adverse credibility determination is unsupported by the record and the result of his bias.3 She also argues that the IJ and BIA failed to consider evidence of current conditions in Sri Lanka and, in doing so, improperly denied her claim for relief under the CAT. Lastly, she argues that the BIA applied the wrong standard of review in denying her motion to reopen.
First, we conclude that the adverse credibility determination in this case is supported by substantial evidence. The IJ and BIA identified several substantive inconsistencies between Arulanantharasa’s testimony and her asylum application, as well as important omissions from her mother’s letter. Specifically, Arulanan-tharasa failed to mention in her asylum application that she was threatened by Army members during the first incident and her mother’s purported affidavit failed to mention Arulanantharasa’s sister-in-law’s disappearance following the second incident. In addition, we agree that Aru-lanantharasa’s mother’s affidavit appears to have been altered, thus undermining the credibility of the document.4 Her mother’s letter also failed to indicate that Aru-lanantharasa suffered any injuries, namely burns, during the second incident or that two men attempted to rape Arulananthara-sa during the third incident. Lastly, Aru-lanantharasa failed to present credible evidence showing that she was present in Sri Lanka between 2004 and 2007. The record does not compel reversal.
We also conclude that Arulanantharasa’s argument that the IJ was biased, and therefore prejudged her case, lacks merit. To support her claim, Arulanantharasa points to the IJ’s comments during the administrative hearing and identifies several instances where he interrupted her testimony, and one instance where he overruled an objection by her counsel. However, we have previously held that it is appropriate for an IJ to question a petitioner’s factual assertions, as “that type of evaluation is integral to the weighing of testimony and evidence that is typically required to make a credibility determination.” Abdulrahman v. Ashcroft, 330 F.3d 587, 596 (3d Cir.2003). Accordingly, we conclude that there was no due process violation as the record fails to show that the IJ harbored any bias against Arula-nantharasa.
Arulanantharasa also argues that her Tamil ethnicity and the fact that she lives in the Northern Province of Sri Lanka establish her eligibility for relief under the CAT, notwithstanding the adverse credibility ruling.5 To qualify for CAT relief, an applicant must show that it is more likely than not that he or she will be tortured upon returning to the country of removal. See 8 C.F.R. § 208.16(c)(2). In making this determination, the IJ can take into account evidence of past torture upon the applicant, the ability of the applicant to relocate to a safer section of the country, evidence of gross human rights violations on the part of the country’s government, and country conditions. Id.
*959We agree with Arulanantharasa that the BIA overlooked her additional argument in her administrative appeal that, notwithstanding the adverse credibility determination, she is entitled to relief under the CAT because she is likely to be tortured in the future “due to the fact that she is a young Tamil from the Northeastern part of Sri Lanka.” (A.R. at 20.) Arulanan-tharasa argues that the documentary evidence she submitted with her application supports her claim.
Although we express no opinion as to the merits of the claim, we agree with Arulanantharasa that the BIA should have reviewed the argument on appeal. As we have said before, “a decision-maker must review claims for relief under the [CAT] and consider evidence of relevant country conditions even where adverse credibility determinations have precluded relief under the INA.” See Tarrawally v. Ashcroft, 388 F.3d 180, 188 (3d Cir.2003). Accordingly, we remand this issue to the BIA so that it may evaluate it in the first instance. See INS v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002); Silva-Rengifo v. Att’y Gen., 473 F.3d 58, 71 (3d Cir.2007).
Lastly, Arulanantharasa argues that the BIA applied the wrong standard of review in denying her motion to reopen. Specifically, she claims that the BIA erred by failing to use the established “prima facie” standard of review. (Pet. Br. at 37.) We disagree.6 In a motion to reopen removal proceedings, the alien must proffer “new facts to be proven at a hearing to be held if the motion is granted,” and the motion “shall be supported by affidavits or other evidentiary material.” 8 C.F.R. § 1003.2(c)(1). A motion to reopen proceedings “shall not be granted” unless it appears to the Board that the evidence offered “is material and was not available and could not have been discovered or presented at the former hearing.” Id. The Board may deny a motion to reopen proceedings on any of the following grounds: (1) the alien has failed to establish a prima facie case for the underlying substantive relief; (2) the alien has failed to introduce previously unavailable and material evidence; and (3) if the underlying substantive relief is discretionary, the Board may decline to consider the first two threshold requirements and, instead, determine that the alien would not be entitled to the requested discretionary grant of relief. See Doherty, 502 U.S. at 323, 112 S.Ct. 719 (citing INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988)). “As a general rule, motions to reopen are granted only under compelling circumstances.” Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir.2004).
Here, the BIA declined to reopen the case because Arulanantharasa proffered only a savings account booklet, from a Sri Lankan bank, showing activity in 2005. The BIA concluded that this additional information went only to her lack of corroborating evidence demonstrating her presence in Sri Lanka between 2004 and 2007. However, it did not cure the adverse credibility ruling in the case, which provided an appropriate basis for the denial of asylum. Although the BIA may not have expressly stated the term “prima fa-cie,” it appropriately based its decision on the requirements of § 1003.2(c)(1) and Do-*960herty. We agree that the evidence that Arulanantharasa presented with her motion to reopen was not material nor did it establish a prima facie case for the relief sought. Accordingly, the BIA did not abuse its discretion in denying her motion to reopen.
Based on the foregoing, we will grant the petition for review in part, deny it in part, and remand the case for further proceedings consistent with this opinion.
. The Karuna group consisted of former members of the LTTE who split from the group and began assisting the Sri Lankan government in its battle against the LTTE.
. Because Arulanantharasa filed her asylum application after May 11, 2005, the provisions of the REAL ID Act governing credibility determinations in asylum applications apply. See Chukwu v. Att’y Gen. of the U.S., 484 F.3d 185, 189 (3d Cir.2007). Under the REAL ID Act, a trier of fact may base a credibility determination on inconsistencies, inherent implausibilities, inaccuracies, and other factors, without regard to whether they relate to *958the heart of an applicant’s claim. See INA § 208(b)(l)(B)(iii).
.In a related claim, she argues that because the IJ was biased, her due process rights were violated.
. Her mother’s letter had been altered to say "sister-in-law” instead of "brother-in-law” in connection with the second incident.
. She also argues that the IJ and BIA failed to consider country conditions in Sri Lanka before ruling on her claim.
. We review the BIA’s denial of a motion to reopen for abuse of discretion. INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). Under this standard, we will reverse the BIA’s decision only if it is arbitrary, irrational, or contrary to law. Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002). The prima facie standard for a motion to reopen requires the applicant to produce objective evidence showing a reasonable likelihood that he can establish that he is entitled to relief. Id. at 175. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480596/ | OPINION
PER CURIAM.
Garmei Marie Kennedy petitions for review of an order of the Board of Immigration Appeals (“BIA”) denying her motion *961to reopen her removal proceeding. We will dismiss the petition.
I.
Kennedy is a citizen of Liberia. An Immigration Judge (“IJ”) denied her claims for asylum and other forms of relief and ordered her removal to Liberia. The IJ concluded that Kennedy voluntarily assisted in the persecution of others while in Liberia and is thus ineligible for asylum or withholding of removal under the so-called “persecutor bar.” See 8 U.S.C. §§ 1101(a)(42), 1158(b)(2)(A)© and 1231(b)(8)(B)©. The IJ also rejected Kennedy’s claims on the merits. The BIA summarily affirmed on July 9, 2004. Kennedy did not petition for review, timely or otherwise, so we lack jurisdiction to review these underlying rulings. See Vakker v. Att’y Gen., 519 F.3d 143, 146 (3d Cir.2008) (citing Stone v. INS, 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995)).
The Supreme Court later decided Negusie v. Holder, — U.S. -, 129 S.Ct. 1159, 173 L.Ed.2d 20 (2009), in which it remanded for the BIA to reconsider its long-standing position that the persecutor bar applies even if an alien’s participation in persecution was involuntary.1 The IJ found that Kennedy’s participation in persecution was voluntary. Although Kennedy did not seek review of that finding, she filed a motion to reopen on the basis of Negusie. She acknowledged that her motion was untimely because she did not file it within ninety days of the BIA’s previous decision. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2. She requested, however, that the BIA exercise its authority to reopen sua sponte, see 8 C.F.R. § 1003.2(a), on the grounds that Negusie represents a fundamental change in the law. The BIA denied the motion on July 16, 2009, and Kennedy petitions for review.
II.
We generally lack jurisdiction to review the BIA’s decisions regarding reopening sua sponte because the regulation providing for that discretionary authority “offers no standard governing the agency’s exercise of discretion.” Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir.2003). We have recognized an exception permitting review “if an agency ‘announces and follows — by rule or by settled course of adjudication — a general policy by which its exercise of discretion will be governed©’ ” Id. (citation omitted). Kennedy argues that we have jurisdiction to review the BIA’s ruling in this case because it has announced by course of adjudication a policy of reopening sua sponte when there has been a change in the law, which she argues Negusie represents.
We disagree. Kennedy relies primarily on three BIA decisions: In re X-G-W-, 22 I. & N. Dec. 71 (BIA 1998), abrogated on other grounds by In re G-C-L- 23 I. & N. Dec. 359 (BIA 2002); In re G-D-, 22 I. & N. Dec. 1132 (BIA 1999); and In re Beckford, 22 I. & N. Dec. 1216 (BIA 2000). These decisions do not establish a general policy of reopening on the basis of a change in the law.
In In re X-G-W-, the BIA announced a policy of reopening Chinese coercive family planning cases on the basis of legislation making eligible for asylum certain aliens *962who had not been eligible before. 22 I. & N. Dec. at 72-72. This ruling expressly applied only to a limited category of cases (and the BIA has since discontinued the policy, see In re G-C-L-, 23 I. & N. Dec. at 361-62). In In re G-D- the BIA declined to reopen on the basis of an asserted change in law that represented only an “incremental” development rather than the kind of “fundamental change” at issue in In re X-G-W-. 22 I. & N. Dec. at 1135. The BIA explained that its decisions in these two cases were merely “examples of the circumstances in which we deem it appropriate or inappropriate to exercise our sua sponte authority to reopen[.]” Id. at 1134-35 (emphasis added). And In re Beckford did not involve a change in the law at all. The BIA in that case merely noted that untimely motions to reopen must, “at a minimum, ... demonstrate a substantial likelihood that the result ... would be changed if reopening is granted.” 22 I. & N. Dec. at 1219 (emphasis added). It did not hold that it would reopen whenever there was a likelihood of a different result, let alone one based on a change in the law.
In sum, we cannot conclude that the BIA has announced a policy governing the exercise of its discretion under the circumstances presented here. Accordingly, we lack jurisdiction over Kennedy’s petition for review and will dismiss it on that basis. The Government’s motion for summary action is denied as moot.
. The Supreme Court held that the BIA’s reasoning was invalid because the BIA believed itself bound on the issue by Fedorenko v. United States, 449 U.S. 490, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981), which addressed a different statutory scheme. See Negusie, 129 S.Ct. at 1165-66. The Court remanded for the BIA to reevaluate the issue without treating Fedor-enko as controlling, though it acknowledged that the BIA might nevertheless reach the same conclusion. See id. at 1166-67. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480598/ | OPINION
PER CURIAM.
Hendro Purwanto, a native and citizen of Indonesia, and his wife, Wee Son Wong, a native and citizen of Malaysia, petition for review of the Board of Immigration Appeals’ (“BIA”) final order of removal in their consolidated removal proceedings. For the reasons that follow, we will deny the petition.
I.
Because the background of this case is familiar to the parties, we discuss it only briefly here. Purwanto entered the United States on a B-2 visa in June 1999, and Wong followed suit a few months later. They ultimately overstayed their respective visas. In 2001, they married and had their first child. The following year, Pur-wanto applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”), claiming that he had suffered persecution around the time of the 1998 riots in Indonesia, and that he feared future persecution because he was a Chinese Christian and their child was a United States citizen. In 2003, Purwanto and Wong had their second child. Wong then filed her own application, claiming that she feared returning to Malaysia on account of her Chinese ethnicity, her practice of Buddhism, and her membership in the group consisting of “family members of U.S. citizen children.”
The two applications were consolidated for disposition. After a hearing on the merits, the Immigration Judge (“IJ”) denied both applications. The IJ concluded that the requests for asylum were untimely and that Petitioners had failed to establish eligibility for withholding of removal or CAT relief. The BIA initially dismissed Petitioners’ appeal as untimely, but later reopened the appeal based on their showing that the delay in filing the appeal was due to ineffective assistance of counsel. On June 19, 2009, the BIA upheld the IJ’s decision, concluding that Petitioners’ asy*996lum claims were untimely and that they had failed to establish eligibility for withholding of removal or CAT relief. Petitioners now seek review of the BIA’s June 19, 2009 decision.1
II.
We begin our analysis by outlining the scope of our review. Petitioners do not challenge the BIA’s rejection of their asylum claims as untimely, and, in any event, we lack jurisdiction to consider that aspect of the BIA’s decision. See 8 U.S.C. § 1158(a)(8); Sukwanputra v. Gonzales, 434 F.3d 627, 633-34 (3d Cir.2006). Additionally, Petitioners have waived any challenge to the BIA’s rejection of Wong’s withholding of removal and CAT claims, as them brief focuses solely on the Indonesia-related claims. See Voci v. Gonzales, 409 F.3d 607, 610 n. 1 (3d Cir.2005). Accordingly, our review is limited to Purwanto’s claims for withholding of removal and CAT relief. We review the factual findings underlying the BIA’s denial of these claims for substantial evidence. See Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir.2003). Under this deferential standard of review, we must uphold the BIA’s decision “unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-484 (3d Cir.2001).
We first consider Purwanto’s withholding of removal claim. An alien seeking that relief must demonstrate that it is more likely than not that his “life or freedom would be threatened in th[e] country [of removal] because of [his] race, religion, nationality, membership in a particular social group, or political opinion.” See 8 U:S.C. § 1231(b)(3); Tarrawally, 338 F.3d at 186. To meet this standard, he must show (1) past persecution, which creates a rebuttable presumption of future persecution, or (2) a likelihood of future persecution. See 8 C.F.R. § 208.16(b). An alien need not demonstrate that he would be singled out for future persecution if he can show that “there is a pattern or practice of persecution of a group of persons similarly situated to the applicant on account of [a protected ground].” 8 C.F.R. § 208.16(b)(2).
In this case, substantial evidence supports the BIA’s finding that Purwanto failed to show past persecution or a likelihood of future persecution. First, he was not harmed during his time in Indonesia,2 and he has not identified any evidence indicating that he would be singled out for persecution upon his return there. Second, he has not shown that there is a pattern or practice of persecution against similarly situated others in Indonesia. Although he appears to argue that the U.S. State Department’s 2003 Country Report and its 2004 International Religious Freedom Report reflect a pattern or practice of persecution in Indonesia against Chinese Christians, we have already rejected that precise argument. See Wong v. Att’y Gen. of the U.S., 539 F.3d 225, 233-35 (3d Cir.2008).
We now turn to Purwanto’s CAT claim. To obtain CAT relief, an alien must demonstrate that he will likely be tortured if removed to the country in question. See 8 *997C.F.R. § 208.16(c)(2). Purwanto has not shown that the record compels vacating the BIA’s rejection of his CAT claim. We agree with the BIA that Purwanto “ha[s] not claimed to have been tortured in the past or provided sufficient reasons why [he] would be targeted for such mistreatment in the future.” (Admin. Rec. at 5.)
Finally, we consider Petitioners’ argument that they were deprived of a fair hearing. In support of this argument, they claim that the BIA failed to consider the entire record and that the IJ engaged in “bias-laden courtroom conduct.” We disagree. Based on our review of the BIA’s decision, we are confident that the BIA properly considered the entire record. Additionally, we have reviewed the transcript of the proceedings before the IJ and are not persuaded that the IJ displayed bias toward Petitioners. Accordingly, we cannot conclude that Petitioners were denied a fair hearing.
In light of the above, we will deny Petitioners’ petition for review.
. We have jurisdiction over the petition pursuant to 8 U.S.C. § 1252(a)(1).
. In his supplemental affidavit, Purwanto averred that, prior to the 1998 riots in Indonesia, a cab driver in Indonesia told him "don't pay me; one day we will get you.” (See Admin. Rec. at 427.) This incident, however, does not rise to the level of persecution. See Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993) (stating that "the concept of persecution does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional”). Nor has he established past persecution based on his witnessing the 1998 riots, for he himself was not harmed during that time. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480607/ | 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 civil complaint under 28 U.S.C. § 1915(e)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we grant leave to proceed in forma pauperis and affirm for the reasons stated by the district court. Akinro v. Maryland Transit Admin., No. 1:10-cv-01268-WDQ (D.Md. May 27, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480601/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellees Board of Trustees of Bladen Community College and Darrell Page moved the Court to reconsider, vacate, and deny appellant Ophelia Munn-Goins’ motion to file reply brief out of time, or to strike appellant’s reply, or for leave to file a sur-reply. We deny appellees’ motion.
Appellant Munn-Goins appeals the district court’s order granting appellees’ motion for summary judgment. We have reviewed the record and Munn-Goins’ arguments and affirm on the reasoning of the district court. Munn-Goins v. Board of Trustees of Bladen Community College, et al, 658 F.Supp.2d 713 (E.D.N.C. 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/8480602/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Keith Woods 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. Woods, No. 7:98-cr-01172-HMH-2 (D.S.C. Feb. 22, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480604/ | Affirmed in part; dismissed in part by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Luther Earl Satterfield seeks to appeal the district court’s order denying relief on his 28 U.S.C.A. § 2255 (West Supp.2010) motion and motion for sentence reduction under 18 U.S.C. § 3582(c) (2006). The portion of the order dismissing the § 2255 *88motion is not appealable 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 constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595. We have independently reviewed the record and conclude that Satterfield has not made the requisite showing.
We have reviewed the record regarding Satterfield’s § 3582(c) motion and affirm the court’s order denying the motion based on the reasoning of the district court. United States v. Satterfield, No. 5:04-cr00173-D-1 (E.D.N.C. Jan. 19, 2010). Accordingly, we deny a certificate of appealability and dismiss the appeal as to the § 2255 motion and affirm the remainder of the order denying relief on the § 3582(c) 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 IN PART; DISMISSED IN PART. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480609/ | 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. Ramada Ltd., No. 1:10-cv-01394-WMN, 2010 WL 2302335 (D. Md. June 7, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480610/ | 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. America Best Value Inn, No. 1:10-cv-01301-BEL (D.Md. May 25, 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/8480611/ | 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 civil complaint under 28 U.S.C. § 1915(e)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Akinro v. Yorkewood Apartments, No. 1:10-cv-01282-WDQ (D.Md. May 27, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480612/ | *93Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eric Childress appeals the district court’s order accepting the recommendation of the magistrate judge and dismissing his 42 U.S.C. § 1983 (2006) complaint for failure to exhaust administrative remedies. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Childress v. Pettiford, No. 4:08-cv-01001-SB, 2010 WL 412547 (D.S.C. Jan. 27, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480613/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cosandra R. Carr appeals the district court’s order granting Prince George’s County, Maryland’s summary judgment motion on her employment discrimination claims, brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s order. See Carr v. Prince George’s Cnty., MD, No. 8:07-cv-02554-RWT, 2009 WL 2567456 (D.Md. Aug. 17, 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/8480615/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Latchmie Narayan Toolasprashad appeals a district court order construing his filing as a successive 28 U.S.C.A. § 2255 (West Supp.2010) motion and denying relief. We have reviewed the record and the district court’s order and conclude the court correctly held it could not consider a second or successive § 2255 motion. We have considered Toolasprashad’s claim that the court erred by not considering that he was seeking relief under Fed. R.Crim.P. 33 and conclude Toolasprashad is not entitled to relief under Rule 33.
Accordingly, we affirm the district court’s order. We deny Toolasprashad’s motion for appointment of counsel and we grant his motion to seal exhibits. 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/8480616/ | *107Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nathaniel Harold Green appeals the district court’s order accepting the recommendation of the magistrate judge and dismissing his 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. See Green v. South Carolina, No. 6:10-cv-00396-TLW, 2010 WL 1346412 (D.S.C. Mar. 30, 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/8480617/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hector Morel, a federal prisoner, appeals the district court’s order denying relief on his 28 U.S.C.A. § 2241 (West 2006 & Supp.2010) petition. We have reviewed the record and find no reversible error. Accordingly, although we grant leave to proceed in forma pauperis, we affirm for the reasons stated by the district court. Morel v. O’Brien, No. 7:09-cv-00346-jlk-mfu, 2010 WL 1212573 (W.D.Va., Mar. 25, 2010). We deny Morel’s motion for appointment of counsel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480618/ | *110Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Karl Kevin Hill appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1988 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Hill v. Cunningham, No. 5:09-cv-00135-FPS-JES, 2010 WL 1138337 (N.D.W.Va. Mar. 19, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480619/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Howell appeals the district court’s order denying relief on 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. Howell, No. 2:94-cr-00020-JAB-2 (M.D.N.C. filed July 10, 2009; entered July 13, 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/8480620/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Edward Kennedy, a federal prisoner, appeals the district court’s order denying relief on his 28 U.S.C.A. § 2241 (West 2006 & Supp.2010) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Kennedy v. Reilly, No. 1:09-cv-01802-BEL, 2010 WL 761204 (D.Md. Mar. 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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480621/ | Affirmed by unpublished PER . CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gary L. Wise appeals the district court’s order adopting the magistrate judge’s recommendation to dismiss his Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (2006) action against the United States after a 28 U.S.C. § 1915 (2006) review. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s order. Wise v. United States, No. 6:09-cv-00901-MBS, 2009 WL 5171215 *113(D.S.C. Dec. 18, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480622/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Edward Sills appeals a district court order denying his “Motion Petition the Court to Alter or Amend Judgment Fed.R.Civ.P. Rule 59(e).” We have reviewed the record and the district court’s order and affirm for the reasons stated by the district court. See United States v. Sills, No. 2:03-cr-00148-JBF-5 (E.D.Va. Feb. 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/8480628/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Henry R. Link appeals the tax court’s orders: (1) sustaining the Commissioner’s proposed use of a levy to collect Link’s unpaid federal income tax liability for the years 1998-2002; and (2) denying his motion to vacate. We have reviewed the record and find no reversible error. Accordingly, we affirm for .the reasons stated by the tax court. Link v. IRS, Tax Ct. No. 10011-08L (U.S. Tax Ct. Sept. 9, 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/8480629/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darry Marvin Harrod seeks to appeal the district court’s order denying his Motion for an Injunction and Other Relief. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed. R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Harrod seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480631/ | PER CURIAM: *
Cameron International Corporation; Halliburton Energy Services, Incorporated*1341; BP Products North America, Incorporated; and BP America, Incorporated (“Petitioners”) petition2 this court for a writ of mandamus directing United States District Court Judge Carl J. Barbier to recuse himself from any further proceedings involving cases related to the Deep-water Horizon oil rig.
I
Following the tragic explosion at the Deepwater Horizon oil rig, numerous lawsuits have been filed in the Eastern District of Louisiana. Because a number of the federal district court judges in that District have recused themselves, many of these cases have been assigned to Judge Barbier (over forty at present).
When the first Deepwater Horizon cases were assigned to Judge Barbier, he owned debt instruments issued by Halliburton3 and Transocean,4 two of the defendants in the instant proceedings.5 Judge Barbier instructed his broker to sell the debt instruments on June 2, 2010. Judge Barbier stated on the record on June 4, 2010, that he was unaware that he owned the debt instruments until reports surfaced in the media, and that, though not required, he thought divestment the best policy to avoid the appearance of bias.
Notwithstanding the divestment, Petitioners moved to have Judge Barbier recuse himself from the proceedings based on 28 U.S.C. § 455(b), the federal recusal statute. Petitioners argued that the debt instruments were “financial interests” under the terms of the statute, and that, accordingly, recusal was mandatory.6 Judge Barbier orally denied their motion, finding that “the ownership of a bond or debt instrument is not the ownership of a financial interest because when you own a bond, you do not own any part of the company....” Because the debt instruments were “not a legal interest in the corporation,” they did not trigger § 455(b) and so did not require recusal.
II
This circuit has recognized that the question of recusal is reviewable on a petition for a writ of mandamus. See In re City of Houston, 745 F.2d 925, 927 (5th Cir.1984). The writ, however, will not lie in the absence of exceptional circum*135stances, id., and the party seeking the writ has the burden of proving a clear and indisputable right to it. In re Placid Oil Co., 802 F.2d 783, 786 (5th Cir.1986) (citing United States v. Gregory, 656 F.2d 1132, 1136 (5th Cir.1981)).
Section 455 governs the disqualification or recusal of federal judges. Germane to the instant matter is § 455(b)(4), which provides, in relevant part:
(b) [A judge] shall ... disqualify himself in the following circumstances:
(4) He knows that he ... has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding....
Section 455(d)(4) defines “financial interest” as “ownership of a legal or equitable interest, however small....”
In orally denying Petitioners’ motion for recusal, Judge Barbier held that recusal was not required because debt instruments are not “financial interests” within the meaning of § 455(b). Judge Barbier reasoned that bond and stock ownership are vastly different because bond ownership does not imply any ownership interest in the company issuing the bond. He relied in part on the Code of Conduct for United States Judges and an Advisory Opinion from the Judicial Commit tee on Codes of Conduct, which states in relevant part:
Debt interests are not considered to give rise to financial interest in the debtor that issued the debt security because the debt obligation does not convey an ownership interest in the issuer. Therefore, disqualification is not required solely because a party in a matter before the judge is a corporation or governmental entity that has issued a debt security owned by the judge.
Advisory Op. No. 101, “Disqualification Due to Debt Instruments,” 101-1-101-2.
Although the Judicial Commit tee is not authorized to interpret § 455, the Code of Conduct, which the Judicial Commit tee is authorized to interpret, contains language similar to § 455. Judges often rely on the Judicial Committee’s opinions in evaluating their conduct, and we consider the Advisory Opinion’s persuasive value. See Union Carbide Corp. v. U.S. Cutting Serv., Inc., 782 F.2d 710, 715 (7th Cir.1986). Neither party provided, nor did our research uncover, any case suggesting that the distinction between stocks and debt instruments is not sound. Indeed, this distinction accords with the language of § 455(b)(4), which speaks, at least in part, of a “financial interest ... in a party to the proceeding.” Stocks, which represent fractional ownership in the issuer, fit within this language, whereas bonds do not. Cf. In re New Mexico Natural Gas Antitrust Litig., 620 F.2d 794, 796 (1980).
Judge Barbier denied the recusal motion on the ground that ownership of debt instruments is different than ownership of corporate stock because the debt instruments do not equate to an ownership interest in a party. We see no error in his reasoning for denying the motion to re-cuse.
This conclusion, however, does not put the matter completely to rest for two reasons. First, the Advisory Opinion, which was the basis of Judge Barbier’s ruling, ignores language from 28 U.S.C. § 455(b)(4). The statute speaks of a “financial interest in the subject matter in controversy or in a party to the proceeding.” 28 U.S.C. § 455(b)(4) (emphasis added). Thus, even if debt instruments do not qualify as a “financial interest[s] ... in a party” because they do not convey an ownership interest, they could nonetheless qualify as “financial interest[s] in the sub*136ject matter in controversy.”7 Furthermore, the second part of § 455(b)(4) speaks of “any other interest that could be substantially affected by the proceeding” as an alternative basis for disqualification. The Advisory Opinion specifically notes that “[ownership of any type of debt interest ... may in some circumstances occasion disqualification if the judge’s interest is such that it could be substantially affected by the outcome of the proceeding.” Judge Barbier never reached the “substantially affected” issue because Petitioners’ motion relied entirely on the “financial interest” prong of § 455(b)(4).8
In sum, because we find no error in the district court’s conclusion that the debt instruments do not qualify as “financial interests ... in a party to the proceeding,” petitions for writ of mandamus are DENIED. The denial is without prejudice to Petitioners moving for recusal in the district court on the basis of either (1) the debt instruments being “financial interests in the subject matter in controversy,” or (2) the possibility that the debt instruments “could be substantially affected by the proceeding.” See 28 U.S.C. § 455(b)(4). We express no opinion as to the merits of either ground.
The petitions for writ of mandamus filed by Cameron International Corporation and BP Products North America Incorporated and BP America, Incorporated are DENIED without prejudice. Halliburton Energy Services, Incorporated’s motion to join in the petition for writ of mandamus filed by Cameron International Corporation is GRANTED. Respondent Felix Alexie, Jr.’s motion to expedite briefing and oral argument and motion for expedited ruling on the petition for writ of mandamus are DENIED as moot.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be *134published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
. Halliburton moves to join in the petition for writ of mandamus filed by Cameron International. The motion to join is GRANTED.
. Cameron International and the BP Entities filed separate petitions. The petitions seek the same relief, but present distinct arguments supporting entitlement thereto.
. Judge Barbier’s disclosure form lists "Halliburton Co. Debentures 3/01/21” as the "Description of the Assets.” The income (from interest) during the reporting year (2008) was between $1,001 and $2,500. The gross value was between $15,001 and $50,000.
. Judge Barbier’s disclosure form lists "Transocean Sedeo Forex Notes 4/15/18” as the "Description of the Assets.” The income (from interest) during the reporting year (2008) was between $1,001 and $2,500. The gross value was between $15,001 and $50,000.
. Transocean owned the Deepwater Horizon oil rig, and Halliburton was the cement contractor. Both Transocean and Halliburton appear as defendants in many of the Deepwa-ter Horizon cases pending before Judge Bar-bier.
. The memorandum in support of Petitioners’ motion states that "the Court held a ‘financial interest' in two litigants.” After reviewing the record, we are convinced that the gravamen of the argument below addressed only whether the debt instruments were “financial interests ... in a party to the proceedings.”
. Although some of Cameron International’s arguments could be read to raise this issue before us, we decline to rule on it in the first instance. Because Judge Barbier based his holding on a finding that debt instruments do not constitute an ownership interest in a party, he never reached whether the debt instruments might qualify as a financial interest in the subject matter in controversy.
. In their petition, the BP Entities argue that we should decide in the first instance that the debt instruments could be substantially affected by the proceedings. We decline to do so because the current record says virtually nothing about the potential impact of the litigation on the debt instruments. Thus, we would be forced to speculate. The better course of action is to allow the district court to address the issue in the first instance. See Tramonte v. Chrysler Corp., 136 F.3d 1025, 1031 (5th Cir.1998). We note that if the district court concludes that the debt instruments could be substantially affected, then recusal would be mandatory because the divestment exception would not apply. See 28 U.S.C. § 455(f) (noting that divestment exception applies only to a financial interest in a party "other than an interest that could be substantially affected by the outcome”); Advisory Op. No. 69, "Removal of Disqualification by Disposal of Interest," 69-2. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480653/ | *723JUDGMENT
PER CURIAM.
This Cause having been heard and considered, it is
Ordered and Adjudged:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480654/ | JUDGMENT
PER CURIAM.
This case was considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties pursuant to D.C. Circuit Rule 34(j). It is
ORDERED that the judgment from which this appeal has been taken be affirmed.
Bryan S. Ross appeals the district court’s grant of summary judgment to Continental Casualty Company on his breach of contract claim. “Summary judg*727ment is appropriate if ‘there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law”’; a genuine issue exists “only if ‘a reasonable jury could return a verdict for the nonmoving party.’ ” Taylor v. Small, 350 F.3d 1286, 1290 (D.C.Cir.2003) (quoting Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) (alteration in original). In 2003, Stanley H. Goldschmidt and the Law Offices of Goldschmidt, P.C. (collectively Goldschmidt) purchased a professional malpractice liability insurance policy from Continental. In the application for insurance Goldschmidt represented that he was unaware of any acts which might form the basis of a malpractice claim against him, notwithstanding that he was then appealing the entry of a default judgment for over $900,000 against his client, Réstau-rant Equipment & Supply Depot (RES), resulting from his failure to file an answer for RES. RES subsequently filed for bankruptcy and its trustee, Ross, sued Goldschmidt for malpractice arising from the default judgment. Continental refused to cover the claim. Ross settled with Goldschmidt and accepted an assignment of Goldschmidt’s rights under the malpractice insurance policy Goldschmidt purchased from Continental. Ross then brought this suit against Continental, alleging that Continental had breached its contract by denying coverage. The district court held that D.C.Code § 31-4314 does not apply and that the clear language of the liability policy precludes coverage for this claim. Ross argues that D.C.Code § 31-4314 does apply, prohibiting Continental from denying coverage, and that the insurance policy calls for a purely subjective inquiry into whether Goldschmidt believed his actions might form the basis of a malpractice claim.
First, we conclude the district court correctly rejected a purely subjective inquiry into Goldschmidt’s belief at the time he purchased the insurance policy. Instead it applied a two-part subjective/objective analysis that looked at the facts of which Goldschmidt was aware and then determined that a reasonable lawyer would have believed those facts could form the basis of a malpractice claim. See Skinner v. Aetna Life & Cas., 804 F.2d 148, 151-52 (D.C.Cir.1986) (applying two-part subjective/objective analysis).
Second, under D.C.Code § 31-4314 an insurance company can rescind a policy as the result of a false statement in the application for insurance if the statement “materially affected either the acceptance of the risk or the hazard assumed by the company.” Both falsity and materiality under section 31-4314 may be found as a matter of law. Prudential Ins. Co. of Am. v. Saxe, 134 F.2d 16, 25 (D.C.Cir.1943). Under the proper two-part analysis, Gold-schmidt’s representation was false as a matter of law. That Goldschmidt’s negligence led to the entry of a default judgment of over $900,000 against his client plainly “materially affected either the acceptance of the risk or the hazard assumed by” Continental when it issued Gold-schmidt the malpractice liability insurance policy. Even if D.C.Code § 31-4314 applies, therefore, the plain language of that provision permits Continental to deny coverage on Ross’s malpractice claim against Goldschmidt.
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 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/8480632/ | PER CURIAM: *
The Supreme Court reversed the decision of this court in Abbott v. Abbott, — U.S. -, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010), and remanded for further proceedings consistent with its opinion. We, in turn, REMAND the case to the district court for further proceedings consistent with the opinion of the Court, including the consideration of the issues in Part IV of *149that opinion. We GRANT the motion to recall the mandate issued on October 8, 2008.
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/8480633/ | PER CURIAM: *
The Federal Public Defender appointed to represent Michael Manuel Jimenez 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 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/8480634/ | PER CURIAM: *
Appearing pro se, the plaintiff-appellant, Sergi Chepilko, has filed a three-page brief. It is difficult to tell what legal claims he makes on appeal. The only issue stated is “[wjhether District Court correctly dismissed with prejudice all claims of plaintiff for failure to comply with PreTrial Order 28.”
Chepilko asserts that he “did not receive from the District Court numerous PreTrial Orders, including PTO-28----” He states that “[ijstead, Vioxx claims Adminis*243trator offered plaintiff to enroll in the Settlement Program,” which he did. He declined to sign the stipulation of dismissal because, as he posits, he
had real concerns that such demand without consideration of the settlement offer could be fraudulent and addressed this issue to the court. Nobody explained [to] plaintiff why such stipulation of dismissal requires upfront unconditional signing.
Chepilko asserts that being required to sign the stipulation of dismissal, pursuant to the settlement, is “illegal.” That claim is without merit. Because he has shown no reversible error, the judgment of dismissal is AFFIRMED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480635/ | *372ORDER
Joanne Morgan claims that she is disabled by depression and anxiety, back disorders, and weakness in her legs and shoulders. The Social Security Administration denied her claims for disability insurance and supplemental security income at all stages, and a magistrate judge, presiding by consent, upheld the decision. But because we conclude that the ALJ erred in determining Morgan’s physical residual functional capacity (“RFC”) and in evaluating her credibility, we vacate and remand for further proceedings.
Morgan’s personal history is marred by significant hardship that relates both to the physical and psychological aspects of her application for disability benefits. Morgan grew up in an abusive home and later endured' two abusive marriages. During her second marriage, Morgan had three children in one year (one pregnancy involved twins) and gave the twins up for adoption. In her application for benefits, Morgan attributed some of her depression and anxiety to remorse over the adoption and fear of her ex-husband. Additionally, in 1978 at the age of 19, Morgan developed Guillain Barré Syndrome (“GBS”) and had to relearn how to walk.1 She recovered, but some of the symptoms persisted.
Despite these difficulties, Morgan graduated from high school, attended some college, and obtained a certificate to work as a nursing assistant. She also worked various jobs including cook, housekeeper, assembly-line worker, personal assistant, and dispatcher. Her longest full-time position was in a convenience store from 2000 to 2002 where she worked as a cook and cashier. Most recently, she worked as a home-care assistant from September 2003 until July 2004, when her employer fired her because she had transportation difficulties and because she performed too slowly.
After Morgan applied for benefits in February 2004, two state-agency doctors evaluated her mental health. Psychologist Erwin Baukus examined Morgan and diagnosed her with chronic forms of major depression and generalized anxiety. He also noted that she had a history of substance abuse and highlighted that she had consumed 12 beers in one sitting only 2 days before their appointment. Based on her alcoholism, Dr. Baukus opined that Morgan would “most likely spend- [disability] funds on alcohol” and remarked that depression “is often a symptom of alcohol dependence.” Dr. Carl Hermsmeyer, the second state-agency doctor, then assessed Morgan’s mental RFC. He concluded that she had mild limitations in performing daily activities and moderate difficulties maintaining social functioning, concentration, persistence, and pace, but he found no evidence of decompensation. Based on these findings, Dr. Hermsmeyer concluded that Morgan’s mental impairments did not significantly limit her ability to perform most work-related activities but that she had moderate limitations in her ability to understand, remember, and carry out instructions.
Morgan’s application for benefits also included independent medical records documenting her physical health as of December 2005, when she was struck by a row of shopping carts that toppled over in a parking lot. This incident caused Morgan to experience severe pain in her back and left *373foot, so doctors prescribed Vicodin and physical therapy. Once she began receiving treatment for these injuries, Morgan was also diagnosed with several other physical impairments. Two MRIs revealed degenerative changes and bulging discs in her back but no herniation or stenosis. Dr. Thomas Szymke, a private rehabilitation specialist, examined these results and found that she suffered from facet sclerosis in her lower back, osteitis in her sacroiliac joints, joint contracture, and weakness in her right rotator cuff. Morgan was also diagnosed with hypertension, hypothyroidism, gastroesophageal reflux disease (“GERD”), high cholesterol, and hypercholesterolemia, but a few months of medication apparently improved these conditions. To support Morgan’s application for benefits, Dr. Szymke provided a report documenting these ailments.
Morgan’s written application also addressed her daily functioning. When describing her hygiene habits, Morgan wrote that she bathed only once a week and that she did not fix her hair or regularly change her clothes. She also noted that she was often forgetful and that she felt lethargic and anxious. Because of these limitations, Morgan explained, she depended on her mother and son for daily care.
At her hearing, Morgan, who appeared pro se, elaborated on her impairments. She testified that she could not work because of anxiety, mood swings, and depression. She also explained that she could not stand or sit for more than two hours, that she had numerous back and leg problems, and that she needed to take frequent breaks. Although she acknowledged taking Vicodin and over-the-counter pain medicine, she said that her financial situation prevented her from taking anything else. She testified that she read and prayed to help cope with her depression.
Both Morgan and her adult son testified about how these conditions affected her daily activities. Morgan explained that her depression caused her to prefer being alone and that her physical conditions limited her ability to do things like bending to put on shoes. Despite these limits, Morgan testified that she went to physical therapy and occasionally shopped for groceries or walked four blocks to the library. She also acknowledged doing various household chores such as cooking, laundry, and washing dishes. Morgan’s son, however, contradicted his mother’s statements regarding her ability to do many of these chores. He testified that he did most of the shopping and housework and that even simple communication with his mother was often difficult due to her mental state. When the ALJ asked whether she could return to work as a cook, Morgan replied that she would not get hired because she was too slow. Finally, the ALJ asked Morgan about her drug and alcohol abuse, and she responded that she had not abused drugs or alcohol for a long time.
After listening to Morgan’s testimony, a vocational expert (“VE”) testified regarding the work available to someone with her limitations. The ALJ first asked what work would be available to someone with a limited ability to climb, balance, stoop, kneel, crouch, or crawl; occasional concentration deficiencies; and a limited ability to interact with others. The VE reported that such a person could do some of Morgan’s past work and some forms of light work. The ALJ then asked whether sedentary jobs existed if the individual also could not stand for more than an hour at a time. The VE noted that most sedentary jobs required interaction with the public but that such an individual would still be able to hold some other positions, including work as a shipping clerk or “light” variations of kitchen helper, janitor, cleaner, and housekeeper.
*374The ALJ then evaluated Morgan’s claim under the required five-step analysis, 20 C.F.R. §§ 404.1520, 416.920, and concluded that she was not disabled. The ALJ found that (1) Morgan had no substantial gainful employment in 2005, (2) her back disorders, history of GBS, and anxiety and depression constituted severe impairments, (3) these impairments did not collectively meet or equal a listed impairment, (4) Morgan had the RFC to perform some sedentary work, and (5) based on this RFC she was able to perform some of her previous jobs or other jobs. The ALJ premised his decision on an adverse credibility finding regarding “the intensity, persistence and limiting effects” of Morgan’s conditions. The ALJ thought Morgan exaggerated her symptoms because she was not receiving treatment for her mental illness; she was not using an assistive device for her physical impairments; she could engage in daily activities that included walking four blocks, reading, and praying; and she herself testified that she was able to work and do household activities. The ALJ further noted Morgan’s substance abuse and credited Dr. Baukus’s conclusion that her depression was related to her drinking. The ALJ’s determination was upheld by the magistrate judge.
. On appeal Morgan complains that the ALJ’s decision — which is the final word from the Commissioner because the Appeal’s Counsel declined review, see Getch v. Astrue, 539 F.3d 473, 480 (7th Cir. 2008) — is not supported by substantial evidence because it is based on an incomplete RFC determination and an unsound adverse credibility finding. Regarding the RFC determination, Morgan argues that the ALJ should have obtained a physician’s report documenting her exertional limitations, and that, without this assessment, the ALJ overlooked many of her physical impairments (including, for example, the injuries to her ankle and back following the shopping-cart incident).2
We agree with Morgan that the ALJ failed to properly assess her physical RFC. The problem, though, is not merely that the ALJ failed to seek a physician’s assessment, but that without it, the RFC determination is not supported by any evidence. An ALJ must determine a claimant’s RFC based on the evidence in the record, see 20 C.F.R. § 404.1546(c); Craft v. Astrue, 539 F.3d 668, 676 (7th Cir.2008), and when the claimant is pro se, the ALJ may need to develop the record in order to make this determination, see Nelms v. Astrue, 553 F.3d 1093, 1098 (7th Cir.2009). If an ALJ determines a claimant’s RFC without obtaining a physician’s RFC evaluation, other evidence in the record must support the determination. See Conrad v. Barnhart, 434 F.3d 987, 991 (7th Cir.2006). Here, however, the ALJ did not request a physical evaluation, and the record does not support his decision. The only medical evidence concerning Morgan’s physical condition is contained in Dr. Szymke’s report, which mentions Morgan’s weakness in her shoulder and legs, and numerous other ailments. By determining Morgan’s physical RFC without reference to these highly pertinent aspects of her condition, the ALJ eschewed his obligation to consider the aggregate impact of Morgan’s impairments (including the extent of her foot, shoulder, and back conditions), see 20 C.F.R. § 404.1523; Terry v. Astrue, 580 F.3d 471, 477 (7th Cir.2009); Golembiewski v. Barnhart, 322 F.3d 912, 918 (7th Cir.2003), and failed to build a “logical bridge” from the evidence to his ultimate *375conclusion that Morgan is not disabled, see Parker v. Astrue, 597 F.3d 920, 921 (7th Cir.2010); Craft, 539 F.3d at 673.
The ALJ’s adverse credibility finding is similarly unsupported by the record. Although we defer to credibility findings that are not “patently wrong,” Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2006), the finding must be justified by specific reasons, Villano v. Astrue, 556 F.3d 558, 562 (7th Cir.2009). In this case the ALJ’s credibility finding was based on at least four pieces of unsound reasoning. First, the ALJ disbelieved Morgan because she was not receiving medical attention for her impairments, but he failed to acknowledge that Morgan had testified that she was unable to afford treatment. See Myles v. Astrue, 582 F.3d 672, 677 (7th Cir.2009). Next the ALJ doubted the extent of Morgan’s depression because she could pray and read books, but no evidence supports this illogical reasoning, and the ALJ should not have made this sort of medical determination without reference to medical evidence. See Blakes ex rel. Wolfe v. Barnhart, 331 F.3d 565, 570 (7th Cir. 2003); Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir.1990). Third, the ALJ credited Dr. Baukus’s statements suggesting that Morgan’s symptoms resulted from alcoholism and not depression even though the medical evidence substantiated Morgan’s claims of depression. Even if substance abuse exacerbated that condition, it “does not prove that the mental illness itself is not disabling.” Kangail v. Barnhart, 454 F.3d 627, 629 (7th Cir.2006). And finally, we are troubled by the ALJ’s decision to rely on Morgan’s self-assessment of her ability to work even though Morgan’s son indicated that Morgan’s mental state limited her ability to assess her own capabilities. See Gillen v. Fallon Ambulance Serv., 283 F.3d 11, 22 (1st Cir.2002). Although these errors in the ALJ’s credibility determination, standing alone, might be insufficient to order remand, together they cast doubt on the soundness of the ALJ’s determination that Morgan is not disabled.
The judgment is therefore VACATED and the case is REMANDED to the Social Security Administration so that the ALJ can fully address the functional limitations of Morgan’s physical impairments and fairly assess her credibility.
. GBS is a rare autoimmune disorder affecting the peripheral nervous system. The initial symptoms are usually weakness or tingling sensations in the legs, but in severe cases the symptoms can spread to the arms and upper body and can cause paralysis. Although most patients recover from GBS, some can experience continued symptoms and weakness. See Stedman’s Medical Dictionary 1755 (27th ed.2000).
. Physicians will frequently address a claimant's physical RFC and document the findings on an approved form such as SSA-4734-BK, and ALJs often rely on these assessments to support their ultimate RFC determinations. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480636/ | ORDER
This court is once again called upon to rule in the 16-year litigation saga between Mahendra Mehta and Baqar Shah. The facts relevant to this appeal are below— the full factual background can be found in our 2004 decision, Mehta v. Shah, 113 Fed. Appx. 165, 166-67 (7th Cir.2004). In 1999, appellant Mehta obtained a substantial money judgment in the Cook County (Illinois) Circuit Court against his former business partner Baqar Shah. Post-judgment proceedings were removed to federal district court (Northern District of Illinois), where the district court adopted the judgment. Dist. Ct. Dkt. 1,14.
Mehta has not been able to collect. He alleges that Baqar Shah has made several fraudulent transfers in an attempt to hide his assets to avoid paying the judgment. The present chapter of this lengthy litigation began in October 2006, when Mehta filed citations to discover assets in the district court against certain third parties that purportedly possessed Baqar Shah’s assets. The targets of these citations included Devon Bank Trusts Nos. 6284, 6611, and 6659; appellee Zakir Shah, Ba-qar’s brother, is the beneficiary of these trusts. Zakir filed motions to quash the citations against the trusts, alleging that he and the trusts had been dismissed by the initial Illinois state court judgment and released from Baqar’s federal bankruptcy proceedings.
On February 13, 2007, the district court granted the motions to quash as to all three Devon Bank trusts, finding that documentary evidence supported Zakir’s contentions. Dist. Ct. Dkt. 50. Mehta, appearing pro se, filed a “motion to vacate” that judgment on March 12, 2007. The heading of this motion specifically stated that it sought relief under Federal Rule of Civil Procedure 60(b). The motion made no reference to any other federal procedural rule. The district court denied this motion on February 21, 2008. Mehta filed a notice of appeal on March 24, 2008.
This court has already ruled in an interim order that this appeal is limited to review of the district court’s February 21, 2008 order denying Mehta’s Rule 60(b) motion to vacate. See 3SM Realty and Development, Inc. v. Federal Deposit Ins. Co., No. 08-1741 (7th Cir. Jan. 26, 2009) (interim order); App. Dkt. 10. We decline to revisit this ruling. As we pointed out *383then, Mehta did not file a timely notice of appeal of the judgment quashing the citations, and the district court did not grant an extension of the appeal period. See Fed. R.App. P. 4(a)(1)(A), 4(a)(5).
In issuing the interim order, we rejected Mehta’s contention that his motion to vacate should be treated as a motion under Federal Rule of Civil Procedure 59(e) rather than under Rule 60(b). The motion explicitly stated that it sought relief under Rule 60(b), and it mentioned no other type of federal relief. See Dist. Ct. Dkt. 51. More important than the label on the motion was its timing. Even if the motion had said that it sought Rule 59(e) relief, it was not filed within 10 days of judgment as Rule 59(e) required then, and thus it still would have been construed as a motion under Rule 60(b). See, e.g., United States v. Shaaban, 602 F.3d 877, 879 (7th Cir.2010) (construing post-judgment motion as filed under Rule 60(b) and not Rule 59(e) where movant failed to file within 10 days of judgment, and limiting review to denial of the Rule 60(b) motion); Easley v. Kirmsee, 382 F.3d 693, 696 n. 2 (7th Cir. 2004) (where appellant filed motion to reconsider more than ten days after the court entered final judgment against her, district court correctly treated her post-judgment motion as one under Rule 60(b) instead of Rule 59(e)). Thus, we construed Mehta’s post-judgment motion to vacate as a Rule 60(b) motion and limited our review to the district court’s denial of that motion. App. Dkt. 10.1
Mehta asserts in his brief and at oral argument that these deficiencies should be excused because he was appearing pro se and he purportedly confused the Rule 59(e) deadline with a parallel Illinois deadline. The claim of confusion is dubious because the motion to vacate so clearly asked for relief under Rule 60(b), not Rule 59(e). In any event, Mehta’s status as a pro se litigant does not excuse his failure to meet the mandatory deadline for filing a Rule 59(e) motion. See Jones v. Phipps, 39 F.3d 158, 163 (7th Cir.1994) (“the district court did not abuse its discretion in finding neither her incarceration nor lack of an attorney — alone or combined — a sufficient basis” to excuse appellant’s failure to meet a filing deadline; although pro se litigants “benefit from various procedural protections not otherwise afforded to the ordinary attorney-represented litigant, pro se litigants are not entitled to a general dispensation from the rules of procedure or court imposed deadlines”) (internal citations omitted). Mehta’s failure here is even less excusable; he has been an Illinois attorney for many years. Cf. Jones v. Phipps, 39 F.3d at 163 (pro se litigant’s “access to some legal counsel made her task of showing ‘good cause’ or ‘excusable neglect’ more difficult”). We stand by our interim order and limit our review to the district court’s February 21, 2008 order denying Mehta’s Rule 60(b) motion to vacate. We will not review the district court’s February 13, 2007 order quashing Mehta’s citations to discover assets against the Devon Bank trusts.
We review a district court’s denial of a Rule 60(b) motion under an “extremely deferential” abuse of discretion standard. *384Eskridge v. Cook County, 577 F.3d 806, 808-09 (7th Cir.2009). In doing so, “we eschew any ability (or desire) to investigate the merits” of the underlying judgment targeted by the Rule 60(b) motion. Jones v. Phipps, 39 F.3d at 164; accord, McCormick v. City of Chicago, 230 F.3d 319, 326-27 (7th Cir.2000) (applying deferential standard to affirm denial of Rule 60(b) relief). We will not disturb the district court’s decision to deny Mehta’s Rule 60(b) motion unless we find that there was a substantial danger that the result was “fundamentally unjust.” See id. at 327.
Rule 60(b) is an extraordinary remedy “designed to address mistakes attributable . to special circumstances and not merely to erroneous applications of law.” Eskridge, 577 F.3d at 809 (affirming denial of Rule 60(b) motion), quoting Russell v. Delco Remy Division of General Motors Corp., 51 F.3d 746, 749 (7th Cir.1995) (quotation marks omitted). The district court may grant Rule 60(b) relief only “under the particular circumstances listed in the text of the rule.” See Russell, 51 F.3d at 749. Rule 60(b) motions are' not meant to correct legal errors made by the district court. See Marques v. Federal Reserve Bank of Chicago, 286 F.3d 1014, 1017-18 (7th Cir.2002) (“A legal error by the district court is not one of the specified grounds for [a Rule 60(b) ] motion. In fact it is a forbidden ground”).
Beyond the inexcusable filing error discussed above, Mehta’s Rule 60(b) motion alleges none of the special circumstances necessary for Rule 60(b) relief. The motion does nothing more than enumerate supposed errors and deficiencies in the district court’s application of the law to the facts in granting the motions to quash. The rules governing the federal courts provide a litigant ample opportunity to make such a challenge, but that opportunity is through an appeal of the judgment launched by filing a timely notice of appeal. A Rule 60(b) motion is not a substitute for the appellate process. See Bell v. Eastman Kodak Co., 214 F.3d 798, 801 (7th Cir.2000) (Rule 60(b) motion may not be used as substitute for timely filing of appeal; basis for setting aside a judgment under Rule 60(b) “must be something that could not have been used to obtain a reversal by means of a direct appeal”).
The arguments in Mehta’s Rule 60(b) motion simply reiterate those in his response to Zakir Shah’s motions to quash. The district court considered and rejected these arguments in reaching its judgment. The district court might have been right and might have been wrong on the merits, but it did not abuse its discretion when it denied Mehta’s attempt to launch what amounts to an appeal through a Rule 60(b) motion. See Hicks v. Midwest Transit, Inc., 531 F.3d 467, 474 (7th Cir.2008) (denial of Rule 60(b) motion was not an abuse of discretion where moving party did not offer any new arguments or provide new facts); Stoller v. Pure Fishing Inc., 528 F.3d 478, 480 (7th Cir.2008) (district court’s denial of Rule 60(b) motion was not an abuse of discretion where moving party offered only arguments on the merits; “[a] Rule 60(b) motion is not a substitute for appeal, and thus [appellantj’s attempt to use it as such was appropriately rejected”). Perhaps Mehta was right on the merits, but his failure to file a timely notice of appeal forfeited his chance to seek substantive review before this court.
The district court’s order denying Meh-ta’s Rule 60(b) motion was not an abuse of discretion. We consider no other questions in this limited review. The judgment of the district court is AFFIRMED.
. At the time of the district court's order, Rule 59(e) imposed a 10-day deadline for filing. The December 1, 2009 amendments to the Federal Rules of Civil Procedure have changed this to a 28-day deadline. For the purposes of this determination, we apply the rule as it applied at the time of the order and the ensuing motion to vacate. See Elustra v. Mineo, 595 F.3d 699, 703-04 n. * (7th Cir. 2010); Green v. Drug Enforcement Administration, 606 F.3d 1296, 1300 n. 2 (11th Cir. 2010). This motion was filed 27 days after the judgment was entered in the docket and therefore fell outside the applicable 10-day deadline for Rule 59(e) motions. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480637/ | ORDER
Guillermo Rivera was sentenced in the Northern District of Indiana to 140 months’ incarceration, 3 years’ supervised release, and ordered to pay a fíne of $300 and $12,353 in restitution for three bank robberies. On appeal, he argues that the district court intended to make this sentence fully concurrent with a previous sentence of 104 months he received in the neighboring Northern District of Illinois for bank robberies committed there, but *386mistakenly structured the sentence so that it is only partially concurrent. Because we cannot determine the district court’s intent, we vacate the sentence and remand for clarification.
I.
In 2004 and 2006, Rivera robbed several banks in Illinois and Indiana — he was eventually indicted for seven, but his pre-sentence investigation report listed several additional, uncharged, robberies. He was arrested in 2006, but a number of delays— most of which were of his own making— put off his trial on the Indiana charges for nearly three years. In July 2008, he pleaded guilty in the Northern District of Illinois and, in October, was sentenced to 104 months. Seven months later, on the eve of trial in the Northern District of Indiana, he pleaded guilty to three counts of bank robbery.
The presentence investigation report calculated Rivera’s guidelines range at 140 to 175 months. At sentencing, Rivera raised three objections: first, that he should not receive an enhancement for obstruction of justice; second, that he should receive a reduction for acceptance of responsibility; and, finally, that he should not receive an enhancement for a death threat he made to a bank teller in one of the robberies. He also requested a sentence below the guidelines range and asked the court to make his sentence concurrent with his Illinois sentence. The government agreed that the sentences should be concurrent and that Rivera should receive credit for time he had already served.
The district court rejected Rivera’s arguments and gave him a within-the-guidelines sentence of 140 months, but did “feel[], because of the proximity of time, that this sentence should be served concurrently with the term of imprisonment in the Chicago cases.” In the sentencing order, the court stated that the term of imprisonment was to run concurrently with the Illinois sentence and recommended to the Bureau of Prisons that Rivera “be given credit for time served.”
It also ordered Rivera to pay a total of $12,353 in restitution to the banks he robbed. At the hearing, it set a schedule of minimum payments of $100 a month, beginning 30 days after the start of Rivera’s supervised release. The court also stated that Rivera “shall make restitution payments of any wages earned in prison in accordance with the Bureau of Prisons’ Financial Responsibility Program.” The sentencing order made the restitution payment due immediately or, failing that, set the repayment schedule as indicated at the hearing. The written order did not mention repayment during prison through the Inmate Financial Responsibility Program. Rivera appeals his sentence.
II.
The parties agree that the proper standard for review is plain error because Rivera did not raise the district court’s mistake at any time before the appeal. United States v. Olano, 507 U.S. 725, 734-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). This means that we will only vacate his sentence if he establishes that (1) there was an error, (2) it was plain or obvious, (3) it affected his substantial rights, and (4) it seriously affects the fairness, integrity, or public reputation of the proceedings. Id.
Rivera argues that the district court mistakenly structured his sentence so that he will serve seven months more than the district court actually intended. This is so, according to Rivera, because the district court intended his sentence to run fully concurrent with his sentence in the *387Illinois case. But instead of reducing Rivera’s sentence to 133 months to account for the seven months that he had already served on the undischarged Illinois conviction from the Northern District of Illinois, the district court simply recommended to the Bureau of Prisons that he be given credit for any time he had already served.
If, as Rivera contends, this was the district court’s intention, it overlooked significant problems with this approach. First, the district court’s recommendation to the Bureau has no legal effect because it exceeds the court’s authority. United States v. Ross, 219 F.3d 592, 594 (7th Cir.2000). Second, and more importantly, even if the Bureau of Prisons wanted to give credit for the seven months between the conviction in the Northern District of Illinois and this one, it could not: According to 18 U.S.C. § 3585(b), the Bureau cannot credit time served against a sentence if it has already been credited against another sentence. Id. at 594. In this case, the seven months have already been credited against his Northern District of Illinois sentence.
If the district court wished to give a fully concurrent sentence, the effective procedure is suggested by the guidelines. As § 5G1.3(b) explains, the district court could have determined that some of the time served would not be credited and reduced Rivera’s sentence accordingly. And although § 5G1.3(b) applies to sentences made concurrent with undischarged sentences for conduct considered “relevant conduct” in the guideline calculation, and thus does not directly apply here where the prior offense only factored into the criminal history calculation, it is still instructive when giving a concurrent sentence under the discretionary § 5G1.3(c).
The government argues that the district court actually intended to give a sentence only partially concurrent with the sentence from the Northern District of Illinois. In its view, the court’s recommendation to the Bureau merely suggests that the court wanted Rivera to get time-served credit to which he was entitled, but not the extra seven months. Thus, Rivera would serve 140 months (minus any time served prior to the conviction in the Northern District of Illinois, presumably) beginning from his conviction in the Northern District of Indiana, rather than beginning that sentence after completing the remaining 97 months of the undischarged sentence from the Northern District of Illinois.
Of course, this could be what the district court intended. And no one has argued that such a result would be unreasonable or an abuse of discretion by the district court. But the problem is that we cannot say for certain which result the district court intended.1 The court did not explicitly state whether it intended a fully or partially concurrent sentence. And although the government does not concede that the district court erred, it does admit that remanding the case for clarification would do no harm. We agree. If the district court intended to make the sentences fully concurrent, it was plain error to structure the sentence the way it did. And seven months’ more imprisonment than the district court intended would affect Rivera’s substantive rights and the fairness of the proceedings. Therefore, we vacate the sentence and remand to the district court for clarification.
*388Rivera also argues that the district court committed plain error by ordering him to participate in the voluntary Inmate Financial Responsibility Program. He is correct that such an order would constitute plain error. United States v. Boyd, 608 F.3d 331, 335 (7th Cir.2010). It is not obvious to us that the district court was ordering participation when it ordered Rivera to make restitution payments of “any wages earned in prison in accordance with the [Inmate Financial Responsibility Program],” and, in any event, our normal cure for such an error would be a simple modification of the sentencing order. See id.; United States v. Munoz, 610 F.3d 989, 997 (7th Cir.2010). But because we are remanding the case anyway, the district court should clarify that it is neither ordering participation in the voluntary financial responsibility program, see Boyd, 608 F.3d at 335, nor, equally impermissible, ordering the Bureau of Prisons to make a particular use of funds that Rivera earns while in prison. See United States v. Sawyer, 521 F.3d 792, 794 (7th Cir.2008).
III.
Because it is not clear whether the district court intended Rivera’s sentence to run fully or partially concurrent with the sentence from the Northern District of Illinois, we VACATE the sentence and REMAND the case for clarification.
. We note that the better procedure in cases like this — essentially claiming a mistake by the district court, rather than a legal or factual error or an abuse of discretion — would be for the defendant to bring the mistake directly to the district court’s attention and ask it to correct the "clear error" of the sentence within the time allowed for such motions under Federal Rule of Criminal Procedure 35(a). This would allow the district court to correct its own mistake, or at least clarify what it intended, without the need for an appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480638/ | ORDER
In 2002, a jury found Radar Tyler guilty of conspiring to distribute crack cocaine, in violation of 21 U.S.C. § 846, and possession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a). The district court sentenced him to 295 months incarceration, a total term of supervised release of five years, and a special assessment of $300.
After the Sentencing Commission reduced the Guideline ranges for crack cocaine that retroactively reduced the base offense level for crack cocaine offenses by two levels, Tyler asked the district court to reduce his sentence, as 18 U.S.C. § 3582(c)(2) permits. The district court entered an order reducing his sentence by two levels but concluded that it lacked authority to further reduce the sentence below the retroactive Guidelines amendment range. This decision was correct.
In United States v. Cunningham, 554 F.3d 703, 708 (7th Cir.2009), we held that district courts do not have authority to impose a sentence below the amended Guideline range. Tyler conceded that our decision in Cunningham foreclosed his argument, but he nonetheless wished to preserve his argument in light of the Supreme Court’s grant of certiorari in United States v. Dillon, 572 F.3d. 146 (3d Cir.2009), cert. granted, — U.S. -, 130 S.Ct. 797, 175 L.Ed.2d 559 (2009). The Supreme Court issued its opinion on June 17, 2010. Dillon v. United States, — U.S. -, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010).
Dillon held that Booker did not apply to § 3582 proceedings, and so the restrictions that § 1B1.10 places on a sentence modification are mandatory rather than advisory. Id. at 2693. We cited Dillon for the proposition that “neither the statute nor the Constitution requires the judge to conduct a full re-sentencing in response to a [sentence-reduction] motion.” United States v. Neal, 611 F.3d 399, 401 (7th Cir.2010). Rather, as Dillon held, “§ 3582(c)(2) represents a congressional act of lenity intended to give prisoners the benefit of later enacted adjustments to the judgments reflected in the Guidelines.” 130 S.Ct. at 2692. Our holding in Cunningham is on all fours with Dillon: because a sentence modification is not a full re-sentencing, Booker does not apply and district courts are bound by the minimum amended Guidelines range. See Cunningham, 554 F.3d at 707-08. Therefore, the district court was correct that it lacked authority to further lower Tyler’s sentence *390beyond the two levels permitted by the amended Guideline.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480640/ | ORDER
Max Watkins was found guilty by a jury of wire fraud, 18 U.S.C. § 1343, and was sentenced to a total of 70 months’ imprisonment. In this direct appeal, he challenges only the reasonableness of the prison term.
Watkins was a salesman at a car dealership and ran a scam that increased his sales and thus his commissions. He increased his sales by targeting unsophisticated buyers whose credit rating should have precluded them from qualifying for financing. In order to get approval for a credit sale, Watkins obtained a signed personal check from the buyer with the amount left blank. Sometimes he told the buyer that he would fill in the necessary, amount, while other times he said he would not process the check and that he just needed it for credit verification. Watkins would then complete the check for a large figure to cover the sales price or a significant down payment, knowing there were insufficient funds in the account, and run the check through one of two services that verify and guarantee checks and process payments. If the check service did not approve the check, Watkins would resubmit the check at á later date, sometimes modifying the name or amount or identification of the account holder, in the hope of it slipping by and getting approved. After Watkins obtained approval, he would transfer ownership and allow the buyer to depart with the vehicle. Watkins told the buyer to arrange payment of any outstanding balance with the check service if contacted by the service. This was the scheme in general, although it was executed with minor variations. Eventually the check services, which were on the hook for the financing, realized that the checks were bouncing, and one of the services alerted the authorities.
At sentencing, and in his sentencing memorandum, Watkins’s attorney argued in mitigation that Watkins was raised by an abusive father and had an addiction to money. In addition, his attorney argued that Watkins’s imprisonment would be a hardship on his family as his wife was dyslexic, had Bell’s palsy, and did not work. Furthermore, his attorney noted that Watkins was 66 years old with high blood pressure, restless leg syndrome, and an anxiety disorder.
In deciding on an appropriate sentence, the district court noted that Watkins had a history of fraud, with both federal and state convictions. The court was especially incensed because Watkins preyed on the vulnerable. But the court acknowledged Watkins’s argument that his imprisonment would be hard on his family and noted that Watkins was not young and had health problems. Balancing these considerations, the court concluded that a prison term within the guidelines range of 57 to 71 months, but near the high end, was appropriate.
On appeal Watkins argues that his prison term is unreasonable in light of the mitigating factors he cited at sentencing. (Watkins had also contended that the district court miscalculated the amount of loss from his scheme, but he abandoned that position at oral argument.) Watkins’s prison term is presumptively reasonable because it falls within the guidelines range. See Rita v. United States, 551 U.S. 338, 347-51, 127 S.Ct. 2456, 168 L.Ed.2d 203 *394(2007); United States v. Portman, 599 F.3d 633, 636 (7th Cir.2010). We are presented with no reason to disturb that presumption. The district court acknowledged Watkins’s arguments in mitigation, but concluded simply that they did not warrant a lower sentence.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480641/ | ORDER
In each of these cases, which we have consolidated on appeal, Richard Hoeft asserts that an employee of Wisconsin’s Stanley Correctional Institution ran afoul of the Eighth Amendment. In one suit he claims that John Sears, a dentist, failed to provide him with dentures; in the other suit he claims that Michael Kasten, a supervising officer, subjected him to loud and constant noise. The district court granted summary judgment against Hoeft in each case. He appeals, but we affirm the judgments.
Hoeft’s teeth were in poor shape throughout the time he spent at Stanley. In March 2007 he submitted a form to Dr. Sears requesting dentures and complaining of cavities. But as Dr. Sears explained in his affidavit, “standard dental practice” mandates that a dentist should not fit a patient for dentures until all other work is complete and the patient has had at least six weeks to heal. So Dr. Sears placed Hoeft on separate wait-lists for dentures and cavity work. In April, after receiving another form from Hoeft, Dr. Sears scheduled a “priority appointment” and, two days later, extracted a tooth. And in June a dental technician cleaned Hoeft’s teeth. But before Dr. Sears could complete his treatment plan, Hoeft was transferred to another prison in July 2007.
Hoeft’s teeth were still causing him “a lot of pain” when he returned to Stanley in September 2008. Although he renewed his request for dentures, Dr. Sears instead picked up where he had left off and began treating cavities in two of Hoeft’s teeth. Over the next few weeks the dentist completed a root canal on one of Hoeft’s teeth and a restoration of another. And in January 2009 Dr. Sears extracted a tooth and performed a routine cleaning. When Hoeft was released from prison in February, however, he was still on the wait-list for dentures.
Around this time Hoeft spent about a month in the segregation unit. In an affidavit he explained, without elaboration, that the noise there was “excessively loud” and “almost constant.” He complained to Kasten and asked to be moved, but to no avail.
Hoeft filed separate suits against Dr. Sears and Kasten, see 42 U.S.C. § 1983, but the district court granted summary judgment to each defendant. Dr. Sears’ failure to provide Hoeft with dentures did not constitute deliberate indifference, the court reasoned, because the dentist simply chose a course of treatment that prioritized Hoeft’s other dental needs. And Kasten was entitled to summary judgment, the court concluded, because Hoeft did not submit sufficiently specific evidence to prove that he was subjected to excessive noise in the segregation unit.
On appeal Hoeft argues that his claim against Dr. Sears is indistinguishable from Hunt v. Dental Department, 865 F.2d 198, 199, 201 (9th Cir.1989), in which the Ninth Circuit reversed a grant of summary judgment in favor of a dentist who ignored a prisoner’s frequent requests for dentures and waited three months before examining him. See also Farrow v. West, 320 F.3d 1235, 1239-41, 1243-45 (11th Cir.2003) (re*396versing summary judgment in favor of dentist who ignored prisoner’s request for dentures for nine months). As Hoeft sees it, because he had to wait significantly longer than three months, a jury reasonably could conclude that Dr. Sears too ran afoul of the Eighth Amendment.
Unlike the dentist in Hunt, however, Dr. Sears did not ignore Hoeft; to the contrary he provided numerous treatments for Hoeft’s decaying teeth, including extraction, restoration, and even a root canal. Nor does the record support Hoeft’s assertion that he should have been given dentures on demand; in fact Dr. Sears explained in his affidavit that a dentist ought not fit a patient for dentures until all other work is complete and the patient has had a chance to heal. So Hoeft’s complaint boils down to an unsubstantiated disagreement with Dr. Sears’ professional judgment. But lacking any evidence that the dentist’s treatment plan was obviously inadequate, see Berry v. Peterman, 604 F.3d 435, 441-42 (7th Cir.2010), or a substantial departure from standard practice, see Gayton v. McCoy, 593 F.3d 610, 622-23 (7th Cir. 2010), Hoeft cannot make out a claim of deliberate indifference.
As for his claim against Hasten, Hoeft insists that exposing prisoners to loud noises does constitute a violation of the Eighth Amendment. Compare Keenan v. Hall, 83 F.3d 1083, 1090 (9th Cir. 1996) (reversing summary judgment in favor of official who subjected prisoner to constant “ ‘screaming, wailing, crying, singing and yelling’ ” by other inmates), with Lunsford v. Bennett, 17 F.3d 1574,-1577 n. 2,1580 (7th Cir.1994) (holding that “music and loud talking” broadcast over prison intercom throughout 24-hour period did not “offend contemporary standards of deeency”). But he has no answer to the district court’s conclusion that his evidence was insufficiently specific to stave off summary judgment. See Fed.R.CivP. 56(e)(2); Petts v. Rockledge Furniture LLC, 534 F.3d 715, 722-23 (7th Cir.2008) (collecting cases). Indeed his bare-bones affidavit provides no details about the noise; all he says is that it was excessively loud and almost constant. Those generic assertions, however, would not allow a jury to conclude that he was denied “the minimal civilized measure of life’s necessities.” See Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981).
Affirmed. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480642/ | ORDER
Ricardo Bedoya pleaded guilty to attempting to possess heroin for distribution. See 21 U.S.C. §§ 846, 841(a)(1). The district court sentenced him to 125 months’ imprisonment and a $400 fine. In its written judgment the court ordered Bedoya to pay the fine and the $100 special assessment through the Inmaté Financial Responsibility Program. Bedoya appeals, advancing the narrow argument that it was clear error for the district court to mandate his participation in the IFRP, which is a voluntary program. We modify the judgment to make clear that Bedoya’s participation in the IFRP is voluntary.
The district court did not mention the IFRP at sentencing, instead stating that Bedoya’s fine was “to be paid from his prison earnings.” The court’s IFRP directive first appeared in the written judgment, requiring that Bedoya “shall make payments from any wages he may earn in prison in accordance with the Bureau of Prisons Financial Responsibility program.” Because this order was not announced at sentencing, Bedoya did not have any opportunity to object, and thus we reject the government’s assertion that he forfeited the argument for appeal.
The government concedes that the IFRP is voluntary but still advances two arguments for why the district court’s order should stand. First, the government contends that the broad appeal waiver included in Bedoya’s plea agreement precludes him from raising this argument on appeal. In the agreement Bedoya waived his right to appeal “any part of the sentence (or the manner in which that sentence was determined), including any term of imprisonment and fine within the máxi-mums provided by law, and including any order of restitution or forfeiture.” Because the waiver covers any argument related to monetary penalties, the government reasons, Bedoya cannot challenge the district court’s directive that he participate in the IFRP. Second, the purported waiver aside, the government argues that the language of the judgment does not make Be-doya’s participation mandatory. Emphasizing that the judgment says only that Bedoya must make payments from “any wages he may earn in prison,” the government insists that the district court left it up to Bedoya to decide “whether or not he earns wages and consequently whether or not he participates in the ÍFRP.”
Neither contention has merit. This case falls squarely under our recent holdings in United States v. Boyd, 608 F.3d 331, 335 (7th Cir.2010), and United States v. Munoz, 610 F.3d 989, 997 (7th Cir.2010). In Boyd and Munoz we made clear that the IFRP is a voluntary program and that a district court does not have the authority to order a defendant’s participation. Boyd, 608 F.3d at 335; Munoz, 610 F.3d at 997. It is true that Bedoya’s appeal waiver forecloses arguments about the district court’s choice of sentence and the *398manner in which it was imposed, but the IFRP is a collection tool, not a type of “sentence.” District courts do not have the power to order participation, and a written judgment including such an order is unenforceable. Boyd, 608 F.3d at 335. We are similarly unpersuaded by the government’s attempts to impose a more lenient reading onto the court’s order. The language here is nearly identical to the challenged language which we concluded was error in both Boyd and Munoz. The issue is straightforward and easily remedied, and we refuse to complicate matters by straining to read the court’s order as a suggestion rather than a directive. Instead, we modify the district court’s judgment to clarify that Bedoya’s participation in the IFRP is voluntary.
Affirmed as Modified. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480644/ | ORDER
The district court dismissed Lisa Gil-lard’s pro se employment-discrimination suit after concluding that she had acted in bad faith by walking out of her deposition. Gillard appeals but offers no argument why the court abused its discretion. We affirm the judgment.
Gillard taught English at Harold Washington College, but the school decided not to renew her contract in November 2007. As discovery progressed in Gillard’s suit against the governing Board of Trustees, the defendant’s counsel repeatedly tried to schedule Gillard’s deposition but found that she was difficult to pin down. Gillard cancelled twice, and defense counsel eventually procured a court order compelling her to appear and even gave her bus money to get to his office. When Gillard arrived she then demanded that defense counsel give her a written list of the questions he intended to ask. Counsel declined, but Gillard insisted that the Americans with Disabilities Act required this “accommodation” and refused to participate until given his questions. Counsel offered to call the district judge to resolve the dispute, but Gillard would not wait; four minutes after the scheduled starting time, she had already walked out the door.
In response to the defendant’s motion for sanctions, the district court dismissed Gillard’s suit under Federal Rule of Civil Procedure 37(b)(2)(A)(v). The court found that Gillard’s decision to leave the deposition without waiting for defense counsel to contact the court was intended “to frustrate the ends of justice.” And this was not an isolated incident, the court continued. Noting the travails to which Gillard had subjected the Board of Trustees even before she walked out of her deposition, the court lamented that she “has done all in her power to cause frustration to the defense.”
Gillard makes no argument that the district court’s choice of sanction was an abuse of discretion. Nor could she, for her case is indistinguishable from Collins v. Illinois, 554 F.3d 693 (7th Cir.2009). Like Gillard the pro se plaintiff in Collins arrived at her deposition armed with unusual demands and then stormed out even as the defendants offered to telephone a magistrate judge to discuss the dispute. 554 F.3d at 695. The district court found that the plaintiff had willfully refused to be deposed because she offered no legitimate reason why she declined to stick around while the defendants sought a resolution. Id. We held that under the circumstances the court’s sanction of dismissal was reasonable. Id. at 696; see also Lindstedt v. City of Granby, 238 F.3d 933, 934-35, 937 (8th Cir.2000). And there is no reason why the outcome should be any different in this case. We can overlook Gillard’s frivolous assertion that she was entitled to review the deposition questions; her fatal mistake was rebuffing defense counsel’s plea to remain at his office just a few minutes longer so he could get a ruling on her demand from the district court. We *401see no error in the court’s finding that her abrupt departure was designed to frustrate the Board of Trustees’ defense of her lawsuit. And because she acted in bad faith, the court was well within its discretion to dismiss the case.
Just six weeks ago we instructed Gillard to stop peppering this court with frivolous appeals. See Gillard v. Proven Methods Seminars, LLC, 388 Fed.Appx. 549, 550-51 (7th Cir.2010). Today we remind her that litigants who abuse the judicial process face sanctions and restrictions on future suits. See Support Sys. Int'l Inc. v. Mack, 45 F.3d 185, 186 (7th Cir.1995).
Affirmed. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480645/ | ORDER
Ashoor Rasho, an inmate at the Pontiac Correctional Center in Illinois, filed suit *402under 42 U.S.C. § 1988, claiming that prison officials violated his Eighth Amendment rights when they sanctioned him to 90 days of yard restriction after finding him guilty of violating prison rules. The district court dismissed Rasho’s complaint at screening for failure to state a claim, see 28 U.S.C. § 1915A, and Rasho appeals. We affirm the judgment of the district court.
In reviewing the district court’s dismissal, we accept as true the facts described in Rasho’s complaint. See Hoskins v. Lenear, 395 F.3d 372, 373 (7th Cir.2005). According to his complaint, Rasho received a disciplinary report for hiding a milk carton in his jumpsuit during yard time. The reporting guard stated that he did not know why Rasho had the carton, but noted that inmates sometimes fill cartons with urine or feces and then throw them in the yard. After a disciplinary hearing, the Adjustment Committee found Rasho guilty of possessing contraband and abusing yard privileges, and sanctioned him with a demotion in status and 90 days of yard restriction. Rasho filed an emergency grievance; in it he complained that inmates have no choice but to use the milk cartons as urinals because the prison denies inmates access to bathrooms during yard time, and that the 90-day yard restriction violated his constitutional rights. Two months later, Rasho notified the prison’s medical staff that he was experiencing muscle pain, migraines, stomach cramps, and depression, and requested a sick call and a visit from the prison’s psychiatrist. He does not allege these requests were ignored.
Rasho then filed this § 1983 suit, claiming that it was cruel and unusual punishment to deprive him of outdoor exercise for 90 days. He asserted that courts have recognized that exercise is necessary for physical and mental well-being and that any denial of exercise can lead to serious health impairments. In his case, Rasho alleged, the deprivation of exercise caused him to suffer from “muscle, migraines, and stomach pains and problems,” and a “digestive disorder.”
The district court dismissed his complaint at screening, determining that limited denials of outdoor exercise imposed in response to prison disciplinary violations are not unconstitutional. Rasho moved to alter or amend the judgment under Rule 59(e) of the Federal Rules of Civil Procedure, renewing the allegations in his complaint and emphasizing that he would continue to be deprived of outdoor exercise until officials put a urinal in the yard. The district court summarily denied his motion, and Rasho appealed.
On appeal Rasho does not address the district court’s denial of his 59(e) motion, and contends only that the court prematurely dismissed his original complaint. He cites Pearson v. Ramos, 237 F.3d 881 (7th Cir.2001), Delaney v. DeTella, 256 F.3d 679 (7th Cir.2001), and our nonprece-dential decision in Jerricks v. Schomig, 65 Fed.Appx. 57 (7th Cir.2003), to argue that the denial of his outdoor exercise privileges sufficiently states an Eighth Amendment claim and that the district court should have allowed him to proceed with his suit. He does not challenge the prison’s right to discipline him for violating prison rules, or that he violated prison rules in this case, but insists that “out-of-cell exercise is in fact a ... basic human right” that prison officials cannot constitutionally withhold. He notes that he still suffers from headaches, constipation, lethargy, back pain, stomach pains and digestive problems, and that he has experienced subsequent denials of yard time. Again, he does not assert that the prison is ignoring his maladies, only that he objects to the loss of yard time.
*403To state an Eighth Amendment claim, Rasho must demonstrate that the 90-day deprivation “posed a substantial risk of serious harm” that prison officials deliberately ignored. See Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Delaney, 256 F.3d at 683. Prisons often use yard restrictions as sanctions for disciplinary charges, and we noted in Delaney that some deprivation of outdoor exercise may be “inevitable” in the prison context. 256 F.3d at 683-84. To guide prison authorities as to when a denial of outdoor exercise will rise to a constitutional violation, we held in Pearson that “a denial of yard privileges for no more than 90 days at a stretch is not cruel and unusual punishment.” 237 F.3d at 884. We left open the possibility that a denial of less than 90 days could be actionable if the punishment was imposed for “some utterly trivial infraction” of the prison’s rules because the Eighth Amendment requires consideration of the proportionality of the punishment relative to the crime. Id. at 885.
But Rasho does not argue that his infraction was trivial or that the punishment was disproportionate to his violation. Rather, he disagrees generally with our holding in Pearson, but proposes no basis to question our 90-day threshold. Although Rasho suggests that the denial of yard time created medical problems, he does not allege that he suffered unusual health consequences, nor does he contend that, when prison officials imposed the 90-day loss of yard privileges, they were aware of an “impending harm easily preventable.” Delaney, 256 F.3d at 683 (quoting Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir.1992)). Likewise, he has not claimed that officials have ignored the pleas for medical assistance that he made after he lost yard privileges.
Accordingly, we AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480646/ | ORDER
Following a jury trial, Thomas Cunningham was found guilty of one count of bank robbery, see 18 U.S.C. § 2113(a), and sentenced to 180 months’ imprisonment, 30 months below his guidelines range of 210 to 240 months. Cunningham appeals, but his appointed counsel has concluded that the appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We review only the issues presented in counsel’s facially adequate brief and in Cunningham’s ■ response. See CIR. R. 51(b); United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Cunningham was indicted on October 10, 2007, and charged with robbing the First Savings Bank of Hegewisch in Lansing, Illinois. He moved in May 2008 to have the indictment dismissed for violation of the Speedy Trial Act; the district court denied the motion. Trial began on December 15, 2008, and the jury found Cunningham guilty the next day.
Counsel first considers whether any violation of the Speedy Trial Act occurred, given that 430 days passed between the indictment and trial. A defendant must be tried within 70 days of his indictment or his first appearance before a judge, see 18 U.S.C. § 3161(c)(1), but certain periods of time are excluded from the 70-day calculation, see 18 U.S.C. § 3161(h). The total unexcused delay here did not approach 70 days. As counsel notes, the district court properly invoked the “ends of justice” exception, see 18 U.S.C. § 3161(h)(7)(A), to exclude the time from Cunningham’s arraignment on October 16, 2007, to May 7, 2008, for preparation of pretrial motions, for plea negotiations, and for new attorneys to familiarize themselves with Cunningham’s cases. See 18 U.S.C. § 3161(h)(7)(A), (B)(iv); Bloate v. United States, — U.S. -, 130 S.Ct. *4061345, 1357-58, 176 L.Ed.2d 54 (2010); United States v. Napadow, 596 F.3d 398, 404-05 (7th Cir.2010); United States v. Montoya, 827 F.2d 143, 150 (7th Cir.1987). The court also appropriately excluded the time from when Cunningham filed his motion, on May 7, to its denial of the motion on July 16. See 18 U.S.C. § 3161(h)(1)(D); Bloate, 130 S.Ct. at 1353; Napadow, 596 F.3d at 406. And the court properly excluded the time from July 16 to December 1 for trial preparation and continuity of counsel. See 18 U.S.C. § 3161(h)(7)(A), (B)(iv); Napadow, 596 F.3d at 405; United States v. Santos, 201 F.3d 953, 959 (7th Cir.2000). Even if the final two-week delay until the trial began on December 15 were improperly excluded, no violation of the Speedy Trial Act occurred.
Counsel next considers whether the district judge should have recused himself because an Assistant United States Attorney prosecuting the case had previously served as his law clerk. Before the trial began, Judge Leinenweber denied Cunningham’s motion to disqualify himself under 28 U.S.C. § 455. Denial of such a motion, however, can be challenged only with a writ of mandamus — not on appeal after the proceeding is complete. See Tezak v. United States, 256 F.3d 702, 717 n. 16 (7th Cir.2001). (We previously denied Cunningham’s petition for a writ. See In re Cunningham, No. 08-4203 (7th Cir. Dec. 19, 2008) (order).) And the record contains no evidence of actual bias that would require recusal under 28 U.S.C. § 144. See Hoffman v. Caterpillar, Inc., 368 F.3d 709, 717-18 (7th Cir.2004).
Counsel also examines whether the district court abused its discretion when it granted seven of the government’s motions in limine. The motions in limine sought to exclude, among other things, evidence regarding the potential penalties Cunningham faced if convicted; the government’s motivation for prosecuting the case; the impact a conviction would have on Cunningham’s family; and evidence that Cunningham was coerced, unless he could meet the burden of proof necessary for that defense. But we would conclude that Cunningham waived any argument regarding these motions because his trial counsel expressly declined to object to the court’s decision to grant them. See United States v. Murry, 395 F.3d 712, 717 (7th Cir.2005); United States v. Cooper, 243 F.3d 411, 416 (7th Cir.2001).
Counsel also considers whether the district court improperly denied several of Cunningham’s objections during trial. He objected, for example, to the government’s introduction of a letter from an attorney at the Federal Deposit Insurance Corporation as proof that the bank was insured by the FDIC. But an affidavit from the FDIC can be used to confirm a bank’s insured status, so challenging the court’s decision to allow that evidence would be frivolous. See United States v. Hampton, 464 F.3d 687, 690 (7th Cir.2006). Cunningham also objected to certain testimony that arose at trial: testimony about another bank robbery that occurred nearby on the same day; a witness’s use of the word “robber” to describe the person who took the money from the bank; the government’s asking a teller how she felt during her interaction with Cunningham on the day of the robbery; and the government’s asking a teller if she said, “Oh my God,” upon recognizing Cunningham after his arrest as the bank robber. But, as counsel acknowledges, any erroneous evidentiary rulings would have been harmless in light of the overwhelming evidence of Cunningham’s guilt. See Fed.R.Crim.P. 52(a); United States v. Cooper, 591 F.3d 582, 590 (7th Cir.2010).
[5] Counsel next considers whether the district court erred when it barred two *407defense witnesses from testifying about Cunningham’s personal circumstances. Cunningham sought to have the witnesses testify that he was homeless and owed money before the bank robbery, but the court properly concluded that the testimony was irrelevant to the issues at trial or his defense. See United States v. Woolsey, 535 F.3d 540, 549 (7th Cir.2008).
[6] Counsel then considers whether there was sufficient evidence to convict Cunningham. We would review any challenge to the sufficiency of the evidence in the light most favorable to the government, and reverse only if no reasonable factfinder could find Cunningham guilty. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). To convict Cunningham, the government had to prove that he took money belonging to the bank from the person or presence of another by force and violence, or by intimidation. See 18 U.S.C. § 2113(a); United States v. Carter, 410 F.3d 942, 952 (7th Cir.2005). Counsel notes that, at trial, Cunningham did not deny taking the bank’s money from a teller; the only issue was whether he used intimidation to take it. Intimidation requires that a defendant’s words and actions cause an ordinary person to feel threatened, by giving rise to a reasonable fear that resistance will be met with force. See United States v. Thornton, 539 F.3d 741, 748 (7th Cir.2008); United States v. Burnley, 533 F.3d 901, 903 (7th Cir.2008). The teller testified that Cunningham approached her window and gave her a bag and a note that read, “Give me all your money,” and that he said, “Don’t move and don’t scream.” The teller then put all of the money from her drawer into the bag. From such testimony, we would conclude that the teller reasonably felt threatened, see United States v. Clark, 227 F.3d 771, 775 (7th Cir.2000), and so a challenge to the sufficiency of the evidence used to convict Cunningham would be frivolous.
[7] Counsel also looks at the district court’s decision to let Cunningham proceed pro se during sentencing. After Cunningham told the court in February 2009 that he would rather represent himself at sentencing than continue with his trial counsel, the court granted his request without conducting a hearing. Any valid waiver of a right to counsel must be knowing and intelligent. See Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Cooper, 591 F.3d at 587. Although the court did not conduct a hearing, other evidence in the record would convince us that Cunningham understood the risks of proceeding pro se. See United States v. Johnson, 534 F.3d 690, 693-94 (7th Cir.2008). Cunningham first sought to represent himself in May 2008, at which time the court advised him that “you should think about it carefully.” He answered affirmatively when the court asked, “Do you understand that there are a lot of problems with representing yourself?” and “Do you understand that it is undoubtedly prejudicial to your ease not to have a lawyer?” The court noted that Cunningham was “adamant” in his desire to represent himself—despite warnings about the hazards of doing so—and agreed to discharge his appointed counsel. Given Cunningham’s willingness to disregard the risks of proceeding pro se earlier in the case, we would not conclude that the court abused its discretion when it allowed him to represent himself at sentencing.
[8] Counsel also considers whether Cunningham could argue that he received ineffective assistance from his trial counsel, but recognizes that such a claim is best reserved for collateral review. See Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); *408United States v. Recendiz, 557 F.3d 511, 531-32 (7th Cir.2009).
Cunningham seeks in his Rule 51(b) response to raise- several arguments regarding his sentence, most of which stem from his contention — also explored by counsel — that the district court improperly classified him as a career offender. But when the district court determined at sentencing that — based on a 1990 federal conviction for armed bank robbery and separate state-court convictions in 1991 for armed robbery in Cook County and Will County — he was a career offender under U.S.S.G. § 4B1.1, Cunningham concurred, “Absolutely, and I don’t have an objection to that,” and even characterized the language of the guideline as “clear and unambiguous.” We would therefore conclude that he waived any argument on appeal regarding his career-offender status. See United States v. Adcock, 534 F.3d 635, 641-42 (7th Cir.2008); United States v. Sanchez, 507 F.3d 532, 539 (7th Cir.2007).
Cunningham also asserts that the district court improperly relied on immaterial information at sentencing when it observed that another bank robbery took place nearby to the bank that Cunningham robbed. This contention is frivolous— nothing in the record suggests that the court relied at all on that information.
Finally, Cunningham argues that his sentence was unreasonable. But, as counsel recognizes, the court gave careful consideration to the 18 U.S.C. § 3553(a) sentencing factors and — believing the guidelines overstated Cunningham’s criminal history — imposed a below-guidelines sentence, so any challenge to the reasonableness of the sentence would be frivolous. See United States v. Chess, 610 F.3d 965, 967 (7th Cir.2010).
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/8480647/ | MEMORANDUM **
Ascension Hernandez-Perez failed to show any prejudice from the district court’s failure to comply with Federal Rules of Criminal Procedure Rule S2(i)(l)(A). See United States v. Davila-Escovedo, 36 F.3d 840, 844 (9th Cir.1994). Therefore, any error was harmless. See United States v. Soltero, 510 F.3d 858, 863 (9th Cir.2007).
The district court’s addition of the two § 4Al.l(d) points brought his total criminal history from ten to twelve, but did not change his criminal history category of V, and thus resulted in the same Guidelines sentencing range. See U.S.S.G. Ch. 5, Pt. A. Because this was a “fast track” plea agreement, any error was harmless. See United States v. Cruz-Gramajo, 570 F.3d 1162, 1166 n. 3 (9th Cir.2009).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480648/ | ORDER AND JUDGMENT *
STEPHEN H. ANDERSON, Circuit Judge.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
Petitioner and appellant Eddie Lee Williams, a federal prisoner proceeding pro se, appeals the denial of his 28 U.S.C. § 2241 petition which generally challenged his continuing criminal enterprise (“CCE”) conviction, in light of the Supreme Court’s decision in Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999). He sought to invoke the district court’s habeas jurisdiction under § 2241, arguing that 28 U.S.C. § 2255 provided an inadequate or ineffective remedy. We agree with the district court’s dismissal and therefore affirm its decision.
BACKGROUND
Mr. Williams was convicted on multiple drug-related charges in 1991. On direct appeal, this court vacated his conviction for conspiracy but affirmed the district court’s judgment in all other respects. United States v. Williams, No. 91-7094, 1993 WL 125403 (10th Cir.1993) (unpublished). Mr. Williams then filed a § 2255 petition, which the district court denied. This court affirmed that denial. United States v. *548Williams, No. 97-7041, 1998 WL 440481 (10th Cir.1998) (unpublished).
The Supreme Court issued its decision in Richardson in 1999, in which it clarified certain aspects of the law regarding CCEs. Richardson held that a jury in a CCE case must unanimously agree not only that the defendant committed some “continuing series of violations,” but also must agree which specific “violations” make up that “continuing series.” Richardson, 526 U.S. at 815, 119 S.Ct. 1707 (quoting 21 U.S.C. § 848). See United States v. Dago, 441 F.3d 1238, 1244 (10th Cir.2006). Accordingly, Mr. Williams invoked Richardson when, in January of 2010, he sought habe-as corpus relief pursuant to 28 U.S.C. § 2241, arguing that he is actually innocent of the CCE conviction because the jury was not instructed to make unanimous findings as to the acts comprising the “series of violations” needed to support his CCE conviction. He also challenged the sufficiency of the evidence regarding the element of the offense requiring that he hold a managerial position over five or more persons acting in concert. The district court referred the matter to a magistrate judge, who issued a lengthy and thorough report recommending dismissal of the petition. The district court adopted the magistrate judge’s report and dismissed Mr. Williams’ petition. The district court also denied Mr. Williams leave to proceed on appeal in forma pauperis, ruling that the appeal is not taken in good faith. This appeal followed. The government declined to file a brief.
DISCUSSION
As the district court noted, it is well-established that habeas petitions filed pursuant to § 2241 and those filed pursuant to § 2255 serve different and distinct purposes. “A petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather than its validity and must be filed in the district where the prisoner is confined.” Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.1996). A § 2255 motion, by contrast, “attacks the legality of detention ... and must be filed in the district that imposed the sentence.” Id. Since Mr. Williams is attacking the legality of his conviction and sentence, § 2255 is generally the exclusive remedy available to a federal prisoner such as he, unless a § 2255 remedy is inadequate or ineffective. Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir.1999); 28 U.S.C. § 2255. In other words, a § 2241 habeas petition “is not an additional, alternative, or supplemental remedy, to the relief afforded by motion in the sentencing' court under § 2255.” Williams v. United States, 323 F.2d 672, 673 (10th Cir. 1963)(per curiam).
Relying on a number of our cases, as well as cases from other circuits, the district court carefully explained why Mr. Williams is not entitled to relief under § 2241 in this case. We affirm that decision, for substantially the reasons set forth in the report and recommendation, subsequently adopted by the district court. We also deny Mr. Williams’ request to proceed on appeal informa pauperis. See Boling-Bey v. U.S. Parole Com’n, 559 F.3d 1149, 1154 (10th Cir.2009); DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir.1991).
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s decision dismissing Mr. Williams’ § 2241 petition.
This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480649/ | ORDER AND JUDGMENT *
DAVID M. EBEL, Circuit Judge.
Defendant-Appellant Alberto Fuentes-Moreno pled guilty to reentering the United States illegally after having been previously deported subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and (b). The district court calculated Fuentes-Moreno’s advisory guidelines range as calling for 41 to 51 months’ imprisonment, and Fuentes-Moreno does not challenge that calculation. The district court imposed a sentence of 48 months’ imprisonment, which Fuentes-Moreno characterizes as “near the top of the guideline range.” (Aplt. Br. at 9.) Fuentes-Moreno now appeals his sentence, challenging only its substantive reasonableness. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we AFFIRM.
We review the substantive reasonableness of a sentence for an abuse of discretion. See United States v. Rojas, 531 F.3d 1203, 1209 (10th Cir.2008). “A district court abuses its discretion when it renders a judgment that is arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir.2009) (quotation omitted). We accord a rebuttable presumption of reasonableness to a sentence that falls within the properly calculated guidelines range. Rojas, 531 F.3d at 1209.
In this case, the district court provided an ample basis for Fuentes-Moreno’s sentence that leads us to conclude the sentence falls within the acceptable range of reasonableness. As a starting point, the district court’s sentence fell within the guidelines range and is presumptively reasonable. Moreover, the district court explained that immigration authorities discovered Fuentes-Moreno because he committed other criminal offenses — offenses which Fuentes-Moreno now seeks to minimize as mere traffic offenses, though he spent several days in jail as a result of those offenses. The district court also emphasized that Fuentes-Moreno failed to grasp the seriousness of the offense because he has entered the country illegally on four known occasions and was deported three times. On appeal, Fuentes-Moreno highlights that he first entered the *550country illegally as a teenager with his family, but this accounts for only one of his four illegal entries. All three of Fuentes-Moreno’s deportations occurred when he was an adult, and, after each one, he chose to reenter the United States unlawfully. Finally, the district court expressed serious concern with Fuentes-Moreno’s criminal record, which includes two felonies — one for unlawful sexual activity with a minor and one for possession of a forgery writing device— and several traffic offenses, including one for driving under the influence. Although Fuentes-Moreno again sought to minimize the traffic offenses, the district court reasonably explained that the offenses were serious and reflected a disregard for the law. And while Fuentes-Moreno also sought to minimize the seriousness of the sex offense as involving a consensual encounter, the district court thoughtfully considered and rejected that characterization of the offense.
. In sum, the district court stated that it conducted a “careful individual assessment of Mr. Fuentes [sic] and his unique circumstances and characteristics” (R. v.2 at 30), and the record reflects that to be the case. Although the arguments raised by Fuentes-Moreno may have justified a lower sentence, the district court engaged in a thoughtful analysis that yielded a reasonable sentence. Accordingly, we cannot disturb that sentence on appeal.
AFFIRMED.
After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480655/ | 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 May 19, 2010, be affirmed, as the court correctly held that appellant was not entitled to the requested mandamus relief. See, e.g., In re: Medicare Reimbursement Litigation, 414 F.3d 7, 10 (D.C.Cir.2005) (“[A] district court may grant mandamus relief if ‘(1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to the plaintiff.’ ”) (quoting Power v. Barnhart, 292 F.3d 781, 784 (2002) (quoting Northern States Power Co. v. United States Department of Energy, 128 F.3d 754, 758 (D.C.Cir.1997))). Furthermore, although appellant “prays that this Court maintain[] the Plaintiff as a class member” in the Cobell Indian trust litigation, Appellant’s Brief at 16, appellant has not shown an entitlement to such relief.
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/8480656/ | SUMMARY ORDER
Harlina Gunawan, Kurniawan Felix Ong, and Kurniawan Steven Ong, natives and citizens of Indonesia, seek review of an August 31, 2009, order of the BIA denying their second motion to reopen.1 In re Harlina Gunawan, Kurniawan Felix Ong, Kurniawan Steven Ong, Nos. A098 642 607/608/609 (B.I.A. Aug. 31, 2009). We assume the parties’ familiarity with the underlying facts and procedural history of this case.
We review the BIA’s denial of Guna-wan’s motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). An alien may file only one motion to reopen and must do so within 90 days of the final administrative decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). However, there is no time or numerical limitation where the alien establishes materially “changed country conditions arising in the country of nationality.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii). Here, the BIA did not abuse its discretion in denying Gunawan’s second motion to reopen, as it was indisputably untimely and number-barred.
Further, as the BIA found, the evidence Gunawan submitted failed to demonstrate changed country conditions in Indonesia or to overcome the immigration judge’s (“IJ”) underlying adverse credibility determination. Because the IJ found that Gunawan was not credible regarding her fear of persecution for being an ethnic Chinese Protestant, the BIA reasonably discounted the letters from her husband and father in which they asserted that they had suffered *823persecution on the same ethnic and religious grounds. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.2006) (explaining that the weight afforded to the applicant’s evidence in immigration proceedings lies largely within the discretion of the agency); see also Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146—47 (2d Cir.2007); Kaur v. BIA, 413 F.3d 232, 234 (2d Cir.2005) (per curiam).
Moreover, contrary to Gunawan’s argument, the record does not demonstrate that the BIA failed to consider any of the background evidence she submitted. See Xiao Ji Chen, 471 F.3d at 338; see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006). Indeed, rather than demonstrating a worsening of country conditions for ethnic Chinese Christians in Indonesia, the 2007 State Department Country Report, which Gunawan cites in her brief, states that instances of discrimination and harassment against ethnic Chinese Indonesians have declined, and that recent reforms have led to increased religious and cultural freedom. Consequently, we conclude that substantial evidence supports the BIA’s conclusion that Guna-wan failed to demonstrate changed country conditions. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008) (reviewing changed country conditions findings for substantial evidence); see also 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(h).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance -with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
. For ease of reference, this order refers solely to the lead petitioner, Harlina Gunawan. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480657/ | OPINION OF THE COURT
RENDELL, Circuit Judge.
Petitioner Dexter Rodney petitions for review of a final order of removal. We will deny the petition.
I.
Rodney, a native and citizen of Guyana, entered the United States as a lawful permanent resident in February 1996. On February 11, 2004, a jury in the U.S. District Court for the Southern District of New York found Rodney guilty of bank fraud, pursuant to 18 U.S.C. § 1344, and theft of government property, pursuant to 18 U.S.C. § 641, for his theft of over $30,000 in U.S. Treasury checks, which he subsequently deposited at Fleet Bank. On May 14, 2004, U.S. District Judge Victor Marrero sentenced Rodney principally to five months’ imprisonment and ordered him to pay restitution to Fleet Bank in the amount of $23,450.21.
On July 12, 2007, the Government served Rodney with a Notice to Appear, charging that he was removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) because he had committed an “aggravated felony,” as that term is defined by 8 U.S.C. § 1101(a)(43)(M)(i), since he was convicted of bank fraud and “the amount of the funds exceeded $10,000.” On November 6, 2007, an Immigration Judge ordered Rodney removed.
Rodney appealed to the Board of Immigration Appeals, arguing that the Government could not prove that a loss of $10,000 or more resulted from his bank fraud. On March 6, 2008, the BIA found that Rodney’s former counsel was ineffective in failing to challenge the aggravated felony charge, and granted Rodney’s motion to remand.
On April 1, 2008, Rodney appeared before the IJ and denied the charge of re-movability. To support its claim that Rodney had caused a loss of more than $10,000, the Government introduced the pre-sentence investigation report (“PSR”) from his criminal proceeding, which showed a loss to Fleet Bank of $23,450.21, as well as the criminal judgment, which reflected a restitution order for the same amount. However, the IJ held that this did not constitute sufficient evidence of the amount of loss, because it did not indicate how Judge Marrero had calculated the restitution award. The IJ therefore dismissed the removability charge and terminated the removal proceedings.
The Government appealed to the BIA. Citing our decision in Nijhawan v. Attorney General, 523 F.3d 387 (3d Cir.2008), the BIA found that the Government had introduced adequate evidence of the loss caused by Rodney’s conduct and sustained the appeal on July 28, 2008. The BIA noted that the PSR showed that Rodney had deposited stolen checks totaling $37,080.21 into his Fleet account, and that these checks caused Fleet to suffer a loss of $23,450.21. The BIA also noted that *861Judge Marrero had ordered Rodney to pay $23,450.21 in restitution. Furthermore, the BIA held that the totality of the evidence, including the criminal complaint, the judgment of conviction, the PSR, and the restitution order established that the loss was connected to Rodney’s bank fraud conviction. The BIA therefore remanded the case to the IJ for proceedings consistent with its opinion.
On September 16, 2008, Rodney appeared before the IJ and argued that the BIA had not addressed his argument that the Government had failed to show that the loss to Fleet Bank resulted from his bank fraud, rather than from his theft of government property. He further argued that he had not been given an opportunity to argue that Nijhawan was inapplicable to his case. In a ruling issued in October 2008, the IJ declined to permit Rodney to make further arguments because the BIA had already considered Nijhawan, and ordered Rodney removed to Guyana. Rodney appealed to the BIA again, raising the same arguments that he had just presented to the IJ. On March 12, 2009, the BIA dismissed Rodney’s appeal, citing the reasoning from its previous decision. The BIA also indicated that, even if Rodney had not previously had an adequate opportunity to argue the impact of Nijhawan, “he has now submitted his arguments in this regard to the Board.” App. 4.
Rodney now seeks review of the BIA’s decision.
II.
Rodney challenges the BIA’s determination that he caused a loss of more than $10,000, which was necessary in order to find that he had been convicted of an aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i). “Whether [a] conviction constitutes an aggravated felony presents a question of law within our subject matter jurisdiction over which we exercise plenary review.... We do not defer to the BIA’s determination of whether a crime constitutes an aggravated felony.” Henry v. Bureau of Immigration & Customs Enforcement, 493 F.3d 303, 306 (3d Cir.2007) (citations omitted). In applying the $10,000 threshold, we must consider “the specific circumstances surrounding an offender’s commission of a fraud and deceit crime on a specific occasion.” Nijhawan v. Holder, — U.S. -, 129 S.Ct. 2294, 2302, 174 L.Ed.2d 22 (2009). We exercise jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review “questions of law,” including the question of whether a conviction constitutes an aggravated felony. Henry, 493 F.3d at 306.1
We agree with the BIA that the Government adequately proved that Rodney’s bank fraud constituted an “aggravated felony.” According to the PSR, Rodney deposited at least 47 fraudulently obtained. checks at Fleet Bank, and “[t]he combined value of the checks totaled $37,080.21.” App. 362. Two of these checks, which together were worth $13,630, never cleared, which meant that “the victim of this offense, Fleet Bank, suffered losses of $23,450.21.” Id. Rodney did not challenge the content of the PSR at his sentencing before Judge Marrero, who then ordered him to pay restitution to Fleet Bank in the amount of $23,450.21. App. 394. This evidence is sufficient to establish that Rodney caused an actual loss to Fleet Bank of more than $10,000, that he was therefore convicted of an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(D), and that he is therefore removable under 8 U.S.C. § 1227(a)(2) (A) (iii).
*862Although Rodney vigorously resists this straightforward conclusion, none of his arguments have merit. First, he points to an inconsistency in the PSR, which describes the number of fraudulently checks he deposited as both 47 and 49. However, Rodney did not challenge this finding before Judge Marrero, and this inconsistency does not undermine the evidence that Rodney caused losses in excess of $10,000. Second, he argues that a restitution order alone is not necessarily sufficient evidence of the amount of loss. Although that may be true, the combination of the PSR and the restitution order in this ease, especially in the absence of any contrary evidence pointing to a smaller loss, are sufficient to support the finding that Rodney caused a loss of $23,450.21. Nijhawan, 129 S.Ct. at 2303. Third, he argues that he did not plead guilty, did not admit the accuracy of the PSR, and did not otherwise admit that he had caused a loss in excess of $10,000. However, he cites no authority for the proposition that such admissions are necessary to the finding as to the loss amount.
Fourth, Rodney argues that there is no evidence that the pecuniary loss caused by his crimes resulted from his bank fraud, rather than his theft of government property. This contention is also without merit. The loss to Fleet Bank unquestionably resulted from his bank fraud — i.e., his “scheme ... to defraud a financial institution; or ... to obtain any of the moneys ... [of] a financial institution, by means of false or fraudulent pretenses,” 18 U.S.C. § 1344. Although his additional criminal actions in stealing the U.S. Treasury checks, in violation of 18 U.S.C. § 641, may have enabled him to perpetrate this fraud on the bank, the BIA was not required to dissect the causal chain as intricately as Rodney would like. Moreover, the only sensible interpretation of Judge Marrero’s restitution order is that Fleet Bank was the victim of Rodney’s bank fraud, since restitution is used to compensate the “victim” of a crime, see 18 U.S.C. § 3664, and the bank could not have been a “victim” of Rodney’s theft of government property.
Finally, Rodney argues that the BIA denied him due process by relying on our decision in Nijhawan v. Attorney General, 523 F.3d 387 (3d Cir.2008), without giving him notice and an explicit invitation to present argument regarding the impact of that case. We can find no authority, and Rodney cites none, for the proposition that the BIA has a constitutional obligation to inform aliens of every legal authority on which it plans to rely. Moreover, in this case, Rodney had at least two opportunities to present arguments to the BIA regarding the impact of Nijhawan: both in response to the Government’s brief prior to the BIA’s July 2008 decision, and in his third appearance before the BIA, after the IJ’s October 2008 decision.
We have considered Rodney’s remaining arguments and find them to be without merit.
III.
For the reasons set forth above, we will deny the petition for review.
. For this reason, we will deny the Government’s motion to dismiss the petition for lack of jurisdiction. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480658/ | OPINION
PER CURIAM.
Ramil Kamal Khanaliyev seeks review of the Board of Immigration Appeals’ (“BIA”) final order of removal. In its order, the BIA affirmed the Immigration Judge’s (“IJ”) decision to deny Khanali-yev’s application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We will deny the petition.
I.
Khanaliyev, a native and citizen of Azerbaijan, was admitted to the United States on May 26, 2008, as a non-immigrant visitor with authorization to attend an exchange program from June 2008 until September 2008. Khanaliyev remained in the United States beyond September 2008 without authorization from the U.S. Department of Homeland Security (“DHS”). Khanaliyev applied to extend his non-immigrant status and was denied. DHS subsequently issued a Notice to Appear, charging Khanaliyev with removability under INA § 237(a)(1)(B) for having remained in the United States longer than permitted.
Khanaliyev conceded removability before the IJ and, in April 2009, applied for asylum, withholding of removal and protection under CAT. In his application, Khana-liyev alleged that prior to leaving Azerbaijan he was persecuted by law enforcement officers for having participated in a student group which opposes the country’s government.1 Specifically, he claimed *931that, in March 2008, he was arrested and detained for participating in a demonstration. Khanaliyev claimed that he was confined for nearly a week, beaten with a baton, denied sufficient food, and prohibited from contacting family and friends. After he was released, he required medical attention. Khanaliyev believes that, if he is returned to Azerbaijan, he will be arrested by the police, likely tortured, and forced to switch his allegiance to the ruling party.
After a hearing on the merits, the IJ found Khanaliyev not credible and denied his application for relief. The BIA dismissed Khanaliyev’s appeal, concluding that the IJ’s adverse credibility determination was not clearly erroneous. Khanali-yev filed a timely petition for review in this Court.
II.
This Court has authority to review final orders of removal. See 8 U.S.C. § 1252(a). “[W]hen the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We review an adverse credibility determination under the substantial evidence standard. Xie v. Ashcroft, 359 F.3d 239, 243 (3d Cir.2004). Under this deferential standard of review, this Court must uphold a credibility determination unless “ ‘any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Gao v.Ashcroft, 299 F.3d 266, 272 (3d Cir.2002) (quoting INA § 242(b)(4)(B)).2
We conclude that the adverse credibility determination in this case is supported by substantial evidence. The IJ and BIA identified several substantial inconsistencies between Khanaliyev’s asylum application and his hearing testimony, as well as inconsistencies in his testimony throughout the course of the merits hearing. Specifically, Khanaliyev claimed in his application and on direct examination that he had only been arrested once for his political affiliation, in March 2008. See Joint Appendix (“J.A.”) at 64-65; 126-31. On cross-examination, however, he testified that he was previously arrested during a political demonstration and released the same day. (Id. at 84-85.)
Khanaliyev also presented conflicting testimony regarding attempts by the police to contact him following his March 2008 arrest and detention. He first testified that, following the arrest, police contacted him at his home and continued to contact his family after he came to the United States. (Id. at 77.) Khanaliyev then testified that the police did not contact him while he was still in Azerbaijan, but that they contacted his family after he arrived in the United States. (Id. at 78-79.) Later, he testified that police contacted his family while he was still in Azerbaijan, but that they did not contact him directly. (Id. at 82.) In his asylum application, Khanaliyev failed to mention the police contact altogether. (Id. at 77, 126-31.) When questioned about this omission as well as the inconsistencies in his testimony, Khanaliyev cited his poor language skills and his lack of assistance in preparing his asylum application. (J.A. 85). However, as the IJ aptly noted, Khanaliyev has been *932represented by counsel throughout his removal proceedings, including the time before he filed his asylum application. (Id. at 116.)
Lastly, Khanaliyev also omitted from his asylum application, but later testified, that he had been expelled from his university in Azerbaijan and that, prior to his expulsion, he had to pay a bribe in order to receive passing grades due to his political affiliations. (Id. at 67-71.) When the IJ questioned him about the reason for these omissions, he stated that he did not remember everything and also pointed to the application’s lack of space. (Id. at 86.) However, as the IJ noted, Khanaliyev attached six additional pages to his application, as well as a letter from his father, none of which mentioned the expulsion.3 (Id.)
We agree with the BIA that Khanali-yev’s explanations for these inconsistencies and omissions are inadequate. In addition, much of the corroborating evidence that he submitted with his application, while reflective of his association with various opposition groups, fails to substantiate his alleged persecution in March 2008.4 Although Khanaliyev argues that these inconsistencies, particularly his prior arrest, do not go to the heart of his claim, see Pet. Brief at 16-17, as we noted, under the REAL ID Act a trier of fact may basé a credibility determination upon an inconsistency without regard to whether that inconsistency goes to the heart of the claim. See INA § 208(b)(l)(B)(iii). In any event, although the REAL ID Act applies here, we conclude that Khanaliyev’s claim that he was previously arrested is undoubtedly related to his claim that he was persecuted for having participated in the later March 2008 demonstration.
After reviewing the record as whole, we cannot conclude that “any reasonable adjudicator would be compelled to find” Khanaliyev credible. Gao, 299 F.3d at 272 (internal quotation marks and citation omitted).
As Khanaliyev did not meet his burden of proof on his asylum claim, his claim for withholding of removal necessarily fails.5 See Yu v. Att’y Gen., 513 F.3d 346, 349 (3d Cir.2008). With respect to his claim under CAT, we conclude that the BIA properly denied his claim as the record does not demonstrate that anyone in the Azerbaijan government, or anyone acting with its acquiescence, seeks to torture him. See Tarrawally v. Ashcroft, 338 F.3d 180, 187-88 (3d Cir.2003); 8 C.F.R. § 208.16(c)(2).
Accordingly, we will deny the petition for review.
. Khanaliyev also claimed that he has been a member of the Vehdet Party, another political group, since April 2007.
. Because Khanaliyev filed his asylum application after May 11, 2005, the provisions of the REAL ID Act governing credibility determinations in asylum applications apply. See Chukwu v. Att’y Gen. of the U.S., 484 F.3d 185, 189 (3d Cir.2007). Under the REAL ID Act, a trier of fact may base a credibility determination on inconsistencies, inherent implausibilities, inaccuracies, and other factors, without regard to whether they relate to the heart of an applicant's claim. See INA § 208(b)(l)(B)(iii).
. Khanaliyev claimed that it was his father who first informed him of his expulsion.
. While Kanaliyev did present an outpatient record showing that he received medical treatment on March 12, 2008 for bruising and contusions, we agree with the IJ that such evidence is insufficient to establish a claim of persecution, particularly in light of his attendant inconsistent testimony. See Kibinda v. Att'y Gen., 477 F.3d 113, 119 (3d Cir.2007) (defining persecution as threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom).
.Although Khanaliyev raised a due process claim in his BIA appeal regarding the inadequacy of the interpreter provided to him during his merits hearing, we agree with the Government that he has failed to raise that argument in his petition for review and thus the claim has been waived.' See United States v. Pelullo, 399 F.3d 197, 222 (3d Cir.2005). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480660/ | OPINION OF THE COURT
RENDELL, Circuit Judge.
Ket Fung Tjhia petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his second motion to reopen his deportation proceedings. For the reasons that follow, we will dismiss the petition for review for lack of jurisdiction.
Tjhia is an Indonesian citizen who entered the United States legally in 1997 but overstayed his admission. In 2001, Tjhia filed an application for asylum,1 withholding of removal, and protection under the Convention Against Torture. The Immigration Judge (“IJ”) denied all of Tjhia’s applications. The BIA affirmed the IJ’s decision and we denied Tjhia’s petition for review. Tjhia v. Gonzales, 153 Fed.Appx. 58 (3d Cir.2005).
In May 2004, Tjhia filed a motion asking the BIA to reopen his case, claiming ineffective assistance by counsel in front of the *955Immigration Court, changed personal circumstances, and changed country conditions. In September 2004, the BIA dismissed the motion to reopen for failure to show prejudice and failure to comply with the “procedural requirements for an ineffective assistance of counsel claim.” App. 5 (citing Matter of Lazada, 19 I. & N. Dec. 637 (BIA 1988)). Tjhia did not file a petition for review from the denial of his 2004 motion to reopen and thus we did not review that denial. Tjhia, 153 Fed.Appx. at 60 n. 2.
On September 8, 2008, Tjhia filed a second motion asking the BIA to reopen his case based on new evidence regarding his ineffective assistance of counsel claim.2 Tjhia requested that the BIA employ its sua sponte authority to reopen the removal proceedings pursuant to 8 C.F.R. § 1003.2(a) and remand to the IJ to reconsider Tjhia’s persecution claim. On February 2, 2009, the BIA declined to reopen, finding that Tjhia failed to act with due diligence by filing the motion to reopen eight months after Lefkowitz was suspended from practicing law and providing no explanation for the delay.3
We lack jurisdiction to review the BIA’s decision to decline to reopen a case sua sponte. See Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir.2003) (“Because the BIA retains unfettered discretion to decline to sua sponte reopen or reconsider a deportation proceeding, this court is without jurisdiction to review a decision declining to exercise such discretion to reopen or reconsider the case.”) Thus, Tjhia’s petition for review is dismissed for lack of jurisdiction.
. Generally, an alien seeking asylum must file an application for relief within one year of entering the United States. 8 U.S.C. § 1158(a)(2)(B).
. During his hearing before the IJ, Tjhia was represented by Albert S. Lefkowitz. In December 2007, the Appellate Division of the Supreme Court of New York suspended Lef-kowitz's license to practice law for three months because he worked at an immigration agency staffed by non-lawyers.
. The BIA also found that Tjhia's motion to reopen was "untimely, number-barred” and that he had not presented evidence of changed conditions in Indonesia that would merit reopening. App. 6 (citing 8 C.F.R. § 1003.2(c)(3)(h)). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480661/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Samuel G. Bailey appeals the district court’s order denying his copyright complaint against Black Entertainment Television, Inc. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Bailey v. Black Entm’t Television, Inc., No. 3:009-cv-00787-JRS, 2010 WL 1780403 (E.D.Va. May 3, 2010). We dispense with oral argument because the facts and legal contentions are- adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480662/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Clayton McKinnedy, III, appeals the district’ court’s orders substantially accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint and denying his motion for reconsideration.* We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. McKinnedy v. Reynolds, No. 6:08-cv-03169-HMH, 2010 WL 500419 (D.S.C. Feb. 5, 2010). We deny McKinnedy’s motion for appointment of counsel and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
Because the case was dismissed on summary judgment, the district court did not adopt the magistrate judge's recommendation to count the dismissal as a "strike” for purposes of the Prison Litigation Reform Act, 28 U.S.C. § 1915 (2006). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480663/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Peoples seeks to appeal the magistrate judge’s nondispositive orders entered on February 18, 2010, and February 25, 2010. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The orders Peoples seeks to appeal are neither final orders nor appeal-able interlocutory or collateral orders. Accordingly, we dismiss the appeal for lack of jurisdiction. Peoples’ motion for appointment of counsel is denied. 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/8480664/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Samuel R. Jackson appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) complaint for failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Jackson v. Poplin, No. 3:10-cv-00107-GCM, 2010 WL 966120 (W.D.N.C. Mar. 12, 2010). We *977also deny Jackson’s pending motions to appoint counsel and to amend his complaint. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480665/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Harvey Patrick Short 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 under 28 U.S.C. § 1915A(b) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Short v. Bailey-Walker, No. 2:09-cv-01096, 2010 WL 1379964 (S.D.W.Va. Mar. 30, 2010). Short’s motions for an order compelling the state court to adjudicate his state ha-beas corpus petition and for an omnibus habeas corpus hearing are denied. 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/8480667/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenyatta Hasani Adams appeals the district court’s order denying 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. Adams, No. 2:07-cr-00113-RGD-JEB-1 (E.D.Va. filed Feb. 24, 2010 & entered Feb. 26, 2010); see also Dillon v. United States, — U.S. -, 130 S.Ct. 2683, 2693-94, 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/8480668/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions' are not binding precedent in this circuit.
PER CURIAM:
Cornell Rogers appeals the district court’s order dismissing without prejudice *985his 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. Rogers v. Southside Regional Jail, No. 1:09-cv-01232-AJT-IDD (E.D.Va. 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 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.