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https://www.courtlistener.com/api/rest/v3/opinions/8471717/ | ON MOTION
PER CURIAM.
ORDER
The court treats Jacqueline McEachin’s correspondence concerning the timeliness of her petition for review as a motion for reconsideration of the court’s previous rejection of her petition for review as untimely.
On March 6, 2009, the Merit Systems Protection Board issued a final decision in McEachin v. Department of Health and Human Servs., No. DC-0432-08-0740-I-1, 110 M.S.P.R. 662, specifying that its decision was final and that any petition for review must be received by this court within 60 calendar days of receipt of the Board’s decision. The court received McEachin’s petition for review on May 6, 2009.
The Board’s records reflect that McEachin was registered as an e-filer. Pursuant to the Board’s regulations, an e-filer is deemed to receive a decision on the date it is served via electronic mail. See 5 CFR § 1201.14(m)(2) (“MSPB documents served electronically on registered e-filers are deemed received on the date of electronic submission”). Thus, McEachin is deemed to have received the Board’s decision on March 6, 2009. McEachin’s petition for review seeking review of the Board’s decision was received by the court 61 days later, on May 6, 2009.
A petition for review of a Board decision must be filed within 60 days of receipt of the decision. See 5 U.S.C. § 7703(b)(1). The 60-day filing period is “statutory, mandatory, [and] jurisdictional.” Monzo v. Dept. of Transp., 735 F.2d 1335, 1336 *584(Fed.Cir.1984); see also Oja v. Department of the Army, 405 F.3d 1349, 1360 (Fed.Cir.2005) (“[c]ompliance with the filing deadline of 5 U.S.C. § 7703(b)(1) is a prerequisite to our exercise of jurisdiction”). Because McEachin’s petition for review was received on May 6, one day late, this court must dismiss McEachin’s petition as untimely.
Accordingly,
IT IS ORDERED THAT:
(1) The motion is denied. The petition for review is dismissed as untimely.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471718/ | ON MOTION
PER CURIAM.
ORDER
The Secretary of Veterans Affairs responds to the court’s June 18, 2008 order and requests that the court consider the appeal on the merits and reverse the judgment of the United States Court of Appeals for Veterans Claims in Yandle v. Nicholson, No. 05-559. Lavon F. Yandle has not responded.
On January 27, 2005, the Board of Veterans’ Appeals denied Yandle’s 1999 claim for dependency and indemnity compensation (DIC), finding that the cause of Yan-dle’s husband’s death was not related to his military service, and that he was not in *586receipt of or entitled to receive compensation for a totally disabling service-connected disability for ten years prior to his death.
On appeal, the Court of Appeals for Veterans Claims reversed the Board’s decision with respect to its conclusion that Yandle was not entitled to DIC benefits because her husband was not in receipt of or entitled to receive compensation for a totally disabling service-connected disability for the ten years prior to his death. Specifically, the Court of Appeals for Veterans Claims concluded that Yandle was entitled to benefits based on a “hypothetical entitlement theory” that was in force at the time Yandle filed her claim for benefits in 1999. In January of 2000, an amendment to 38 C.F.R. § 3.22 eliminated the application of a hypothetical entitlement theory. The Secretary appealed.
This court stayed proceedings in this case pending disposition of Tarver v. Shinseki, 557 F.3d 1371 (Fed.Cir.2009). In our opinion in Tarver, involving virtually identical facts as the present appeal, we held that the § 3.22 amendment should be applied retroactively to bar the application of a hypothetical entitlement theory for claims filed prior to the amendment’s effective date.
In the present case, with respect to the use of the hypothetical entitlement theory, it is clear that summary reversal is warranted and that Yandle is not entitled to dependency and indemnity compensation.
Accordingly,
IT IS ORDERED THAT:
(1) The motion to reverse is granted. The case is remanded for further proceedings.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471723/ | SUMMARY ORDER
Defendants-Appellants P.O. Raymond Montero, P.O. Brian Menton, P.O. Keith Olson, and P.O. John Traynor (collectively “Appellants”) appeal from a judgment of the United States District Court for the Southern District of New York (Smith, M.J.) entered after a jury verdict finding in favor of Plaintiffs-Appellees Tremaine R. Carter and Michael Fresella (collectively “Appellees”) on their 42 U.S.C. § 1983 claim alleging unreasonable search and seizure in violation of the Fourth Amendment. We assume the parties’ familiarity with the facts, procedural history, and scope of the issues presented on appeal.
Appellants first contend that they were entitled to qualified immunity with respect to their stop and search of Appellees. The District Court reserved the question of qualified immunity with the consent of both parties, but never issued a ruling on the subject. Although we have, in the past, remanded cases where a district court has failed to dispose of an issue of qualified immunity, see Francis v. Coughlin, 849 F.2d 778, 780 (2d Cir.1988), we have declined to follow this rule where, as here, we have an “extensive factual record” at our disposal and “where as a matter of law, defendants would not be entitled to qualified immunity on the facts as alleged by plaintiffs.” Jones v. Parmley, 465 F.3d 46, 63 (2d Cir.2006). Leaving aside the question of whether the jury verdict renders the issue of Appellants’ qualified immunity moot, we conclude that Appellants are not entitled to the defense.
On the special verdict form, the jury indicated its findings that Appellants searched Plaintiffs’ car or persons or photographed their faces without consent, and that they “conducted an unreasonable search or seizure by searching [Plaintiffs’] cell phone[s], searching [their] person[s] beyond a pat-down, or by taking photograph^] of their bodfies].” We have little difficulty concluding that these findings establish a Fourth Amendment violation. The extensive search of Appellees, their vehicle, and/or their cell phones, along with the photographing — -whether alone or in combination — went well beyond what was permissible under a Terry stop. See Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see also Michigan v. Summers, 452 U.S. 692, 698-701, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981) (identifying permissible investigative measures in Terry stop context); United States v. Askew, 529 F.3d 1119, 1136 (D.C.Cir.2008); United States v. Place, 660 F.2d 44, 52 (2d *607Cir.1981). The law in this regard was clearly established and it was not objectively reasonable for Appellants to conclude otherwise. In addition, the statement of an anonymous speaker that “There’s guns in that truck,” which Appellants heard as Appellees’ vehicle crossed the intersection near where the speaker was located, did not, as a matter of law, justify the searches and photographing that occurred here. See Florida v. J.L., 529 U.S. 266, 272, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). We thus conclude that Appellants are not entitled to qualified immunity. See Arlio v. Lively, 474 F.3d 46, 51 (2d Cir.2007).
Next, Appellants challenge the District Court’s denial of their motions for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50. On an appeal “after a jury verdict, we view the facts of the case in the light most favorable to the prevailing party.” Kosmynka v. Polaris Indus., Inc., 462 F.3d 74, 77 (2d Cir.2006). We set aside a jury verdict only where there is “such a complete absence of evidence supporting the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture, or ... such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against him.” Song v. Ives Labs., Inc., 957 F.2d 1041, 1046 (2d Cir.1992) (internal quotation marks omitted) (alteration in original). We review the District Court’s denial of Appellants’ Rule 50 motions de novo, applying the same standards as those applied by the District Court. Advance Pharmaceutical, Inc. v. United States, 391 F.3d 377, 390 (2d Cir.2004).
Here, the jury weighed the testimony of the parties and them witnesses, and determined that Appellees had not consented to being searched or photographed. The jury was entitled to credit Appellees’ version of the facts. We see no basis for overturning their verdict. See Posr v. Doherty, 944 F.2d 91, 96 (2d Cir.1991).
Appellants next argue that the District Court erred in excluding evidence relating to the unavailability and gang affiliation of Appellees’ co-passenger, Dacheau Brown, along with evidence of Appellants’ conversations with Brown. We review a district court’s evidentiary rulings for abuse of discretion. Arlio, 474 F.3d at 51. We conclude that the District Court did not abuse its discretion in excluding this evidence, having concluded that the risk of prejudice substantially outweighed the evidence’s probative value. See Fed.R.Evid. 403; see also Costantino v. Herzog, 203 F.3d 164, 173 (2d Cir.2000). Although the District Court changed its position on this evidence, we find that the court’s subsequent curative instruction eliminated the risk of prejudice. See United States v. Bermudez, 529 F.3d 158, 165 (2d Cir.2008) (holding in a criminal case that defendant was not substantially prejudiced by government’s summation where court issued curative instruction after prejudicial comments).
Appellants also contend that the District Court erred in denying their motion for a new trial. We review the court’s denial of Appellants’ motion for a new trial for abuse of discretion. See Medforms, Inc. v. Healthcare Mgmt. Solutions, Inc., 290 F.3d 98, 106 (2d Cir.2002). A motion for a new trial “ordinarily should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice.” Id. (internal quotation marks omitted). Based on the evidence adduced at trial, we see no miscarriage of justice, and thus conclude that the court’s denial of Appellants’ motion for a new trial was not an abuse of discretion.
*608Finally, we review Appellants’ contention that the District Court erred in awarding Appellees $47,512.50 in attorney’s fees for abuse of discretion. See Barfield v. N.Y. City Health & Hosps. Corp., 537 F.3d 132, 151 (2d Cir.2008). In calculating the reasonable hourly rate for the services Appellees’ counsel rendered, the court considered the range of approved rates for attorneys doing comparable work in the Southern District of New York; Appellees’ limited success before the jury; and the hours counsel reasonably expended on the winning claims. See LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 762 (2d Cir.1998). We conclude that the District Court adequately took into account “all of the case-specific variables that we ... have idéntified as relevant to the reasonableness of attorney’s fees in setting a reasonable hourly rate,” Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, 493 F.3d 110, 117 (2d Cir.2007) (emphasis in original), amended on other grounds by 522 F.3d 182 (2d Cir.2008), and that the court’s award of attorney’s fees was well within its discretion. See, e.g., Kassim v. City of Schenectady, 415 F.3d 246, 256 (2d Cir.2005).
We have considered Appellants’ remaining contentions and conclude that they are without merit.
For the foregoing reasons, the judgment of the District Court is hereby AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471724/ | SUMMARY ORDER
John Ward, Town of Wallkill Supervisor, and Robert Hertman, Town of Wallkill Police Chief, appeal from the district court’s denial of Ward and Hertman’s motion for summary judgment on the grounds that they were entitled to qualified immunity in a First Amendment retaliation case brought by Wallkill Police Officer Dennis Rolon. We assume the parties’ familiarity with the facts, proceedings below, and specification of the issues on appeal.
In the spring of 2000, Rolon filed a lawsuit in federal court alleging that his due process rights had been violated by the police department and various police and town officials. That case eventually settled in 2001, and Rolon received an $85,000 settlement. In August, 2000 — several months after that initial litigation commenced — Rolon was suspended without pay for a variety of alleged acts of misconduct. In February 2002, the arbitrator issued an opinion and award finding Rolon guilty of three of the twelve charges. However, the arbitrator also found the Town failed to properly follow the procedures set forth in the collective bargaining agreement in suspending Rolon without pay. As a remedy, the Town was ordered to reinstate Rolon to active duty with full back pay less two days’ pay as a penalty for the three charges. Rolon contends he was immediately retaliated against upon his return to work in March, 2002, and that such retaliation continued for several years, in the form of suspensions and other disciplinary actions.
While the denial of a motion for summary judgment is not typically immediately appealable, an interlocutory appeal may be taken from an order denying a defendant’s motion for qualified immunity when the denial is based only on a question of law. Salim v. Proulx, 93 F.3d 86, 90 (2d Cir.1996). “While we may not inquire into the district court’s determination that there was sufficient evidence to create a jury question, we may resolve whether, as a matter of law, the defendants are entitled to qualified immunity because the law was not clearly established or because, on the facts assumed for the purposes of appeal, the defendants’ conduct did not constitute a violation of a constitutional right.” Skehan v. Village of Mamaroneck, 465 F.3d 96, 104-105 (2d Cir.2006) (overruled on other grounds).
Government officials performing discretionary functions are entitled to qualified immunity “from federal constitutional claims ... as long as their actions could reasonably have been thought consistent with the rights they are alleged to have *610violated.” Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). A court must determine (1) whether a constitutional violated had been committed; and (2) whether a reasonable official in defendant’s position ought to have known that he was violating plaintiffs federal constitutional rights by doing what plaintiff alleges he did. Pearson v. Callahan, 555 U.S. -, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). A court may address the prongs in whatever sequence is most logical “in light of the particular circumstances at hand.” Id. at 818.
To survive a defense motion for summary judgment on a First Amendment retaliation claim, plaintiff must set forth evidence demonstrating (1) he engaged in protected First Amendment activity; (2) he suffered an adverse employment action; and (3) there was a causal connection between the protected activity and the adverse employment action. Cotarelo v. Vill. of Sleepy Hollow Police Dep’t, 460 F.3d 247, 251 (2d Cir.2006). Once plaintiff sets out a prima facie case, summary judgment is not appropriate unless the defendant establishes as a matter of law that he would have taken the same adverse employment action even absent the protected conduct. Id. at 253.
Appellants concede that Rolon established the first element — that is, that the 2000 lawsuit and 2001 arbitration constitutes protected First Amendment speech. Appellants further concede that the right not to be retaliated against for the exercise of First Amendment rights “is generally well established.” Appellants’ primary argument on appeal is that the acts Rolon complains of are not adverse employment actions.
“Whether an undesirable employment action qualifies as being ‘adverse’ is a heavily fact-specific, contextual determination.” Zelnik v. Fashion Institute of Tech., 464 F.3d 217, 226 (2d Cir.2006). “In the context of a First Amendment retaliatory claim, we have held that only retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action.” Id. (internal quotations and citations omitted). “In this context, adverse employment actions include discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand.” Id. (internal quotation and citation omitted). “This list of retaliatory conduct is certainly not exhaustive, however, and lesser actions, however, and lesser actions may also be considered adverse employment actions.” Id. Being forced to defend against disciplinary charges may constitute an adverse employment action. Albert v. City of Hartford, 529 F.Supp.2d 311, 335 (D.Conn.2007). Accepting the facts as set forth by Rolon— as we must on a motion for summary judgment — -it cannot be said that defendants are entitled to qualified immunity as a matter of law.
The district court properly relied on Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir.2002), where it was held that a “combination of seemingly minor incidents” over a period of time may give rise to a First Amendment retaliation claim once the incidents reach a critical mass. Id. at 109. To make such a showing, plaintiff must prove, using an objective standard, that “the total circumstances of [his] working environment changed to become unreasonably inferior and adverse when compared to a typical or normal, not ideal or model, workplace.” Id. The Phillips Court upheld a jury verdict finding plaintiff was retaliated against for First Amendment speech based on “defendants’ failure to provide her with an adequate bullet-proof vest or proper instruction regarding transfer of a prisoner, or defendants’ humiliating instruction to plaintiff about use of a time clock,” because while such incidents *611“may seem minor when viewed in isolation, a finder of fact looking at them collectively over a period of several years reasonably could find that they rise to the level of actionable harm.” Id. at 109-10. Here, Rolon has been the focus of numerous disciplinary actions for a variety of misdeeds that occurred since 2002. Viewing the facts in the light most favorable to Rolon, a reasonable jury could find plaintiff was charged with an inordinate number of disciplinary infractions to an extent beyond what one would expect in a normal workplace. Indeed, as discussed further below, Rolon introduced record evidence sufficient to raise a question of fact that other officers committed similar infractions, but were not subject to similar discipline.
Defendants also argue that because Ro-lon either admitted to the acts underlying the charges or cannot recall the underlying acts, and because in several eases Rolon consented to an adverse action to resolve Notices of Discipline, it was objectively reasonable for the Chief to take the actions that he did. This analysis misses the mark. The gravamen of Rolon’s complaint is not that he was wrongly accused of committing the infractions for which disciplinary actions were taken, but that he was singled out for discipline, and subject to more severe discipline, as compared to others who committed the same or similar infractions.
Equally unavailing is defendants’ argument that they were not personally involved in the disciplinary actions. “It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Provost v. City of Newburgh, 262 F.3d 146, 154 (2d Cir.2001). A supervisory official personally participates in challenged conduct not only by direct participation, but by (1) failing to take corrective action; (2) creation of a policy or custom fostering the conduct; (3) grossly negligent supervision, or deliberate indifference to the rights of others. Hayut v. State of Univ. of New York, 352 F.3d 733, 753 (2d Cir.2003). Here, the collective bargaining agreement required both Hertman and Ward’s active participation in the disciplinary process. If the police chief determined an employee should be disciplined for incompetence or misconduct, the employee was served with a Notice of Discipline setting out the charge of incompetence or misconduct as well as the proposed penalty. The Notice of Discipline needed to be served within 180 days of the triggering event. After service, a disciplinary interview between the employee and the Chief is held for the purpose of discussing the matter. The chief then makes a finding as to the employee’s guilt, and may impose a disciplinary penalty. Appeals are taken to the Town Supervisor, who makes the final decision on the charges and the appropriate penalty to be imposed, formal meeting on the charges and penalty. Once the Supervisor makes a decision, the union may grieve it to the arbitrator. The record reflects Ward participated in disciplining Rolon.
Finally, defendants argue there is no evidence of retaliatory motive by defendants. Defendants can prevail on a First Amendment retaliatory motion if defendants can show by a preponderance of the evidence that the same discipline would have taken place even in the absence of the protected conduct. Cotarelo, 460 F.3d at 253. The district court properly found that Rolon raised a question of fact as to whether officers committing similar infractions received similar discipline. Moreover, the overall quantity of evidence submitted by Rolon as to his disparate treatment raises a question of whether he was singled out for harsher disciplinary treatment because of animus against him *612as a whistle blower. See, e.g., Skehan, 465 F.3d at 107 (“[s]o long as [defendant’s] animus was a substantial or motivating factor” behind the decision, the fact that the defendant “had other legitimate reasons is irrelevant; because the plaintiffs allege that [defendant’s] motivation was unconstitutional and the district court found the issue to be disputed, we must accept the plaintiffs version of the facts.”).
In sum, “our precedent allows a combination of seemingly minor incidents to form the basis of a constitutional retaliation claim once they reach a critical mass.” Phillips, 278 F.3d at 109. The Circuit has made clear that in the context of a First Amendment retaliation case, we apply a less demanding standard than in other Section 1983 cases, looking only for proof that a similarly situated individual would be deterred from exercising his constitutional rights. Zelnik, 464 F.3d at 225. Taken together, the record evidence submitted by Rolon is sufficient to raise a question of material fact as to whether defendants are entitled to the protections of the qualified immunity defense.
We have considered defendants’ remaining arguments and find them to be without merit.
For the foregoing reasons, the judgment and order of the district court are AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471726/ | SUMMARY ORDER
Cross appeals from an order of the United States District Court for the Western District of New York (Arcara, J.), which adopted in toto the report and recommendation of Magistrate Judge H. Kenneth Schroeder, Jr. In sum, the district court granted summary judgment to defendants Railcar Custom Leasing, LLC (“RCL”) and ECDC Environmental, LC (“ECDC”), and dismissed plaintiffs’ complaint. The district court also dismissed RCL’s cross-claims for contractual indemnification as against ECDC. Plaintiffs and RCL both appeal. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
John McNeight worked as a railcar painter at Ebenezer Railcar Services, Inc., in West Seneca, New York. His duties included coupling and decoupling railcars so that they could be moved into the shop for painting. On August 6, 2004, McNeight began decoupling a railcar with call signal AWXX 4121 from its adjacent car. To complete the process, he needed to turn the circular hand brake on the adjacent car. The hand brake was located at the “B” end of the car, somewhere midway up the height of the car. McNeight was standing on the opposite side of the track from the hand brake. He boarded the center sill at the “A” end of the AWXX 4121, and stepped across to “B” end of the adjacent car. He then manually set the *614hand brake, and attempted to come back the way he came. Stepping backwards, he placed his left foot on the brake pipe of the AWXX 4121 car, slipped and fell. He fell approximately six feet to the gravel below. He sustained injuries including a herniated disc, a rotator cuff tear, and a compression fracture of a vertebra.
McNeight claims that the AWXX 4121 car lacked a crossover board or step, and had no crossover handhold for him to grab. An accident report identifies the absence of these devices as a cause of the accident.
The AWXX 4121 car was in the process of being refurbished so as to be leased by defendant RCL to defendant ECDC.
McNeight sued RCL and ECDC under New York’s Scaffold Law, N.Y. Labor Law § 240(1) (McKinney 2009), claiming that the absence of appropriate safety devices was the proximate cause of his injuries. See, e.g., Toefer v. Long Island R.R., 4 N.Y.3d 399, 795 N.Y.S.2d 511, 828 N.E.2d 614 (2005). The district court dismissed this claim on the ground that McNeight was not subject to the type of elevation risk contemplated by the statute, but rather to the usual and ordinary danger of a railyard. (McNeight appeals only the dismissal of the claim as against RCL.)
Labor Law § 240(1) provides in pertinent part:
All contractors and owners and their agents, ... in the ... painting, cleaning or pointing of a building or structure shall furnish ... for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.
Labor Law § 240(1). In Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 577 N.Y.S.2d 219, 583 N.E.2d 932 (1991), the New York Court of Appeals pointed out that while the hazards against which the statute is directed are not spelled out, they can be inferred from the “protective means” set forth in the statute “for the hazards’ avoidance.” 78 N.Y.2d at 513-14, 577 N.Y.S.2d 219, 583 N.E.2d 932. Roco-vich held that a worker who had been injured when he slipped into a 12-inch-deep trough had not suffered injury from an elevation-related risk, and so was not within the protection of the statute. Id. at 514, 577 N.Y.S.2d 219, 583 N.E.2d 932. Similarly, in Toefer, the Court of Appeals held that alighting from the back of a flatbed truck “did not present the kind of elevation-related risk that the statute contemplates.” 4 N.Y.3d at 408, 795 N.Y.S.2d 511, 828 N.E.2d 614.
The dispositive question here is not whether McNeight had to clamber over the connector between railcars (which may be an ordinary risk of a work site), but rather whether he was required to do work at an elevation, i.e., to turn the hand brake on the car adjacent to the AWXX 4121. McNeight set the hand brake while standing on the back of the ear. He testified that he did not have to climb the ladder on the car to turn the brake, and it was “not too high up.” When asked at his deposition whether he could set the break from the ground, McNeight said “maybe,” but then later corrected the statement to “I don’t think so.” See Fed.R.Civ.P. 30(e)(1).
“The burden of showing that an elevation-related risk exists, and that the owner or contractor did not provide adequate safety devices falls upon the plaintiff.” Broggy v. Rockefeller Group, Inc., 8 N.Y.3d 675, 681, 839 N.Y.S.2d 714, 870 N.E.2d 1144 (2007). In Broggy, plaintiff, a window washer, claimed he had to stand on a desk to wash windows, but “did not testify how high he could reach with his wand and squeegee while standing on the floor. He asserted that he had to stand on the desk, but provided no evidence to show *615that this was because he was required to work at an elevation to clean the interior of the windows.” Id. Similarly, here, McNeight has not satisfied his burden of showing that his work required him to work at an elevation. Although he may have set the brake while standing on a railcar, there is insufficient evidence in this record that setting the brake required him to be exposed to the kind of elevation risk contemplated in the statute. The brake was “not too high up.” McNeight’s statement that “he did not think” he could set the brake from the ground on the other side is not sufficient to establish that he was required to climb atop anything to set it.
McNeight also appeals the dismissal of his claim under New York’s Labor Law § 241(6) (as against RCL only). Labor Law § 241(6) provides that: “All areas in which construction, excavation or demolition work is being performed shall be so constructed ... as to provide reasonable and adequate protection and safety to the persons employed therein....” To state a claim under Labor Law § 241(6), a plaintiff must allege a violation of a particular provision of the New York Industrial Code. See Ross v. Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494, 501-02, 601 N.Y.S.2d 49, 618 N.E.2d 82 (1993). The alleged Code violation must be grounded upon a breach of a “ ‘specific, positive command,’ rather than a ‘reiteration of common-law standards’ which would merely incorporate into the State Industrial Code a general duty of care.” Rizzuto v. L.A. Wenger Contracting Co., 91 N.Y.2d 343, 349, 670 N.Y.S.2d 816, 693 N.E.2d 1068 (1998) (quoting Ross, 81 N.Y.2d at 504, 601 N.Y.S.2d 49, 618 N.E.2d 82).
McNeight argues that RCL violated 12 N.Y.C.R.R. § 23-1.7(d), which provides that “[e]mployers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform, or other elevated working surface which is in a slippery condition.” McNeight claims that the brake pipe on the AWXX 4121, from which he slipped, was wet with morning dew. The district court concluded that a brake pipe is not an “elevated working surface.” See Francis v. Aluminum Co. of Am., 240 A.D.2d 985, 659 N.Y.S.2d 903 (3d Dep’t 1997) (“the load of steel beams from which the plaintiff fell did not constitute a floor, passageway or elevated area as set forth in the regulation.”). Despite McNeight’s argument that workers routinely stepped on brake pipes, he has failed to demonstrate that the district court’s ruling was in error: a brake pipe being used as a momentary step is not an “elevated work surface.”
Finally, RCL appeals the dismissal of its cross-claim for contractual indemnification against ECDC. In light of our dismissal of all claims against RCL, its cross-claim against ECDC is moot. See, e.g., Wilson v. City of New York, 89 F.3d 32, 39 (2d Cir.1996).
Finding no merit in the plaintiffs’ remaining arguments, we hereby AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471728/ | *617SUMMARY ORDER
Plaintiff-appellant Min Kou Chenette asserts employment discrimination claims under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., as well as claims under New York State Human Rights Law (“NYSHRL”), Executive Law § 290 et seq., and New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code, Title 8.
In her complaint, which is dated May 19, 2005, Chenette, who refers to herself as “a Korean female,” alleges that she was hired by Kenneth Cole Productions, Inc. (“KCP”) as a regular employee on August 1, 2003, after having completed an internship the previous year. She spent her entire tenure at KCP working as an International Coordinator in the International Licensing Department (“the Department”). Apparently, but for Chenette’s supervisor, everyone who worked in the Department was female.
The central allegation of Chenette’s complaint is that, throughout her time at KCP, she was “subjected to a regular, frequent, unwanted, and abusive pattern of behavior directed against her, as well as a working environment characterized by lewd, racial, and sexual comments and innuendos, slander, offensive physical contact, and other inappropriate behavior.... ” She alleges a number of instances in which co-workers engaged in sexually-charged jests, some employing ethnic stereotypes. Notably, KCP does not deny that Chenette’s workplace was a freewheeling one. It characterizes the Department as “a casual and friendly atmosphere” in which “friends and colleagues ... used coarse language and behaved in an overly familiar manner towards each other.”
It is undisputed that Chenette sought out promotions while at KCP, and she specifically alleges that her supervisor, Vincent Montemarano, told her that she would be considered for promotion to the position of Associate Manager for Asia. This position, however, as well as the position of Associate Manager of International Licensing, were awarded to others, both female.
The single incident allegedly indicative of a hostile working environment (hereinafter “the Kissing Incident”) which is most emphasized in Chenette’s briefing on this appeal is set forth as follows in her complaint:
21. On May 28, 2004, Plaintiff was on her way back to her desk from a meeting. Cyndi Shapiro saw her walking by and asked her to stop, whereupon Ms. Shapiro said: “Hey I am sorry if I was nasty to you on the phone yesterday, but I am overwhelmed and understaffed, and I lost my control there. I hope that you are ok with that.” Then, she came over to Plaintiff, petted her cheek with her two hands, and kissed her on the lips.
KCP acknowledges that Chenette subsequently reported the matter to its Human Resources Department, and that she also reported alleged acts of sexually and ethnically insulting comments occurring within the Department. KCP declares that, in response, it undertook two corrective actions: (1) as evidenced by an e-mail message, Ellen Rodriguez, the head of the Department, held a departmental meeting on July 12, 2004 to discuss appropriate workplace conduct; and (2) KCP in-house attorney Shari Berman conducted an internal investigation of the Kissing Incident and, as a result, KCP issued an “Incident Warning,” dated August 2004, to Cyndi Shapiro, informing her that she faced immediate termination should she engage in another “infraction of company policy and/or procedure.”
*618Chenette alleges, however, that her reporting of the Kissing Incident and other inappropriate conduct resulted in a campaign of retaliation against her. First, she contends that, on June 17, 2004, Montem-arano gave her a largely negative performance review. Further, on some unspecified date, Chenette contacted an attorney, Mark D. Schwartz, concerning her problems at KCP. Schwartz wrote two letters, dated July 12, 2004 and July 19, 2004, to the General Counsel of KCP. These communications resulted in what both parties refer to as an “interview,” on August 24, 2004, during which Berman and Gail Ca-tropa, KCP’s Vice President for Human Resources, questioned Chenette about her complaints. The parties agree that the interview did not proceed in a productive fashion. Most especially, Chenette was accompanied by Schwartz, who was asked to leave because Berman and Catropa were objected to his interruptions of their questioning.
In a letter to Montemarano, dated August 25, 2004, Chenette announced her resignation from KCP “as a result of pervasive harassment and discrimination at [KCP] directed toward me and others, as well as the retaliation that I have experienced for having reported such activity.” In a letter, dated the following day, Catro-pa asked Chenette not “to make a rash decision about your employment,” and gave Chenette “until Monday, September 7, 2004 to reconsider your resignation and report back to work.” Chenette did not respond.
The district court initially granted summary judgment on all but one of Chen-ette’s claims. Judge Cote held as follows with respect to these claims: (1) Chen-ette’s failure to promote claims failed because she was demonstrably less qualified than the two individuals who received promotion in that “Chenette had not yet received an undergraduate degree and had only worked in a full-time entry-level licensing position for approximately nine months”; (2) there was no improper retaliation arising from her negative performance review in June 2004 because Chenette herself acknowledged at her deposition that the Kissing Incident, of which she had complained shortly before the review, was not motivated by discriminatory intent as contemplated by Title VII; (3) Chenette was not constructively discharged because she could not make the legally required showing that “resigning was the only way to extricate herself from intolerable conditions”; and (4) even assuming that Chenette could prove that her work environment “sufficiently abusive,” she could succeed before a jury with her hostile work environment claim because KCP took “prompt and effective remedial actions” in response to Chen-ette’s complaints. Judge Cote also held, however, that summary judgment was not warranted on Chenette’s claim of retaliation arising from the August 24, 2004 interview because a question of fact existed as to whether the contentious atmosphere prevailing on that occasion “would dissuade a reasonable employee from making or pursuing a charge of discrimination.”
KCP filed a motion for reconsideration as to the denial of summary judgment on the claim of illegal retaliation arising from the August 24th interview. Judge Cote granted this motion, holding that “it was appropriate for and indeed incumbent upon KCP to conduct an investigation of Chenette’s discrimination complaint, and to interview Chenette during that investigation.” Accordingly, Chenette could not meet her burden of demonstrating that the interview was conducted as a result of a retaliatory motive, rather than out of legitimate “desire to develop a defense to a threatened lawsuit.” The instant appeal followed.
*619“We review a grant of summary judgment de novo.” Roe v. City ofWaterbury, 542 F.3d 31, 35 (2d Cir.2008). We analyze Chenette’s Title VII claims under the familiar standard set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). This analysis is also applicable to her claims under the NYSHRL and the NYCHRL. See Weinstock v. Columbia University, 224 F.3d 33, 42 n. 1 (2d Cir.2000).
In general, we believe that the disposition of this case is governed by the principle that “Title VII does not establish a ‘general civility code’ for the American workplace.” Petrosino v. Bell Atlantic, 385 F.3d 210, 223 (2d Cir.2004) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)). It is entirely possible that Chenette believed that her work environment was “disgusting.” But unless Chen-ette can demonstrate that the Department was disgusting in a manner that could be considered as discriminatory towards her as a Korean woman, and that adverse employment actions transpired as a result of her opposition to this situation, she does not have a cognizable Title VII claim.
A. Failure to Promote. Chen-ette makes flatly conclusory statements that she was qualified for the positions she sought. Whether or not this is true, we do not see that she has attempted to demonstrate that she had greater qualifications than the individuals who were promoted. Judge Cote noted that, in contrast to these individuals, Chenette did not have a college degree, and had considerably less experience in licensing. In addition, KCP asserts that because she was still pursuing her college degree, Chenette had a limited ability to travel, something which is plainly important to an international licensing position. In sum, because a plaintiffs “merely subjective assessment” of her own qualifications for promotion cannot defeat evidence that other individuals were more qualified, Dawson v. Bumble & Bumble, 398 F.3d 211, 224 (2d Cir.2005), Chenette has no claim arising from KCP’s failure to promote her.
B. Retaliation. Title VII makes it illegal for an employer to retaliate against an employee “because [s]he had opposed any practice made an unlawful employment practice” by the statute. 42 U.S.C. Section 2000e-3(a). With respect to the Kissing Incident, Judge Cote largely relied upon Chenette’s deposition testimony to establish that Chenette did not believe that Cyndi Shapiro’s action was motivated by a discriminatory intent, and therefore held that Chenette’s subsequent negative performance review could not be seen as a retaliatory act. We think, however, that, regardless of Chenette’s opinion, it cannot be demonstrated that, standing by itself, the kiss was violative of Title VII. Even if one considers the act as a sexual one, it is certainly wrong for Chen-ette to assert that it could reasonably amount to “sexual harassment” in violation of Title VII. On the contrary, “[n]o reasonable person could have believed that [a] single incident” of sexually inappropriate behavior by a co-worker could amount to sexual harassment. Clark County School Dist. v. Breeden, 532 U.S. 268, 271, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001). Further, the August 24th interview certainly could not be considered an act of retaliation. KCP acted properly in investigating Chenette’s allegations because her attorney had already been threatened it with the filing of a lawsuit on the basis of those allegations.
C. Hostile Work Environment. To succeed on this claim, Chenette must prove “(1) that her workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to *620alter the conditions of her work environment; and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer.” Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir.1996). Even if we assume arguendo that the first element has been met because the offensive activity alleged by Chenette is sufficiently pervasive to constitute a hostile work environment, there is simply insufficient evidence to establish the latter element.
First, of all the offensive comments and actions alleged by Chenette, there is apparently only one, an off-color comment made by Montemarano, which was committed by a supervisory employee at KCP. More importantly, there is considerable evidence in the record that KCP, rather than tolerating a hostile work environment, acted to forestall it. It is undisputed that, after complaints made by Chen-ette, Berman conducted an investigation, and a meeting of the Department was held to discuss proper deportment in the workplace; that Cyndi Shapiro was disciplined for the Kissing Incident, see Dawson, at 223 (“any liability against [employer] arising from” allegedly offensive comments of co-worker “was precluded” by employer’s disciplining of co-worker); and that, however unsuccessfully, KCP conducted a formal interview of Chenette in response of her threat of a lawsuit. We can therefore find no reason to reverse Judge Cote’s holding that KCP exercised reasonable care in attempting to eliminate the conditions of which Chenette complains.
D. Constructive Discharge. “[A]n employee is constructively discharged when [her] employer ... intentionally creates a work atmosphere so intolerable that [she] is forced to quit involuntarily.” Petrosino, 385 F.3d at 229. Having failed on her hostile work environment claim, “she can neither survive summary judgment on her constructive discharge claim, which requires evidence of even more severe conditions.” Divers v. Metropolitan Jewish Health Systems, 2009 WL 103703 at *19 (E.D.N.Y. Jan. 14, 2009).
For the reasons stated above, the judgment the district court is hereby AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471733/ | SUMMARY ORDER
Zeng-Xia Zheng, a native and citizen of China, seeks review of an October 31, 2008 order of the BIA affirming the August 1, 2007 decision of Immigration Judge (“IJ”) Barbara A. Nelson, which denied her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Zeng-Xia Zheng, No. A094 797 542 (B.I.A. Oct. 31, 2008), aff'g No. A094 797 542 (Immig. Ct. N.Y. City Aug. 1, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA does not expressly “adopt” the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning, the Court may consider both the IJ’s and the BIA’s opinions. See Jigme Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir.2006). We review the agency’s factual findings under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
An applicant’s credible testimony alone may suffice to carry his burden of proof in establishing eligibility for asylum. See 8 U.S.C. § 1158(b)(1)(B)(ii); see also Diallo v. INS, 232 F.3d 279, 285-86 (2d Cir.2000). In this case, however, the IJ denied that relief after finding that Zheng failed to adequately corroborate material elements of her claim. Under the REAL ID Act amendments, which apply to Zheng’s application for relief, see Matter of S-B-, 24 I. & N. Dec. 42, 45 (B.I.A.2006), “[wjhere the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence,” see 8 U.S.C. § 1158(b)(1)(B)(ii). In addition, “[n]o court shall reverse a determination made by a trier of fact with respect to the availability of corroborating evidence ... unless the court finds ... that a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable.” 8 U.S.C. § 1252(b)(4).
Here, the agency properly found that Zheng’s corroborating evidence failed to meet her burden of proof. Indeed, the agency properly noted that she failed to corroborate her practice of Falun Gong in the U.S. as well as the Chinese authorities’ continued interest in her.2
Zheng argues that it was error for the agency to find that her mother’s affidavit did not support her testimony that: (1) authorities visited her parents’ home looking for her after her escape and (2) continued to visit weekly thereafter. Zheng contends that her mother’s statement that “the local government pursued her everywhere because she practiced Falun Gong” adequately corroborates her claim. However, this explanation would not compel a reasonable factfinder to conclude that the agency erred. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005).
*625Similarly, the agency did not err in finding that Zheng failed to adequately corroborate her participation in Falun Gong in the United States. Specifically, the agency noted that, while Zheng provided testimony from a friend in the U.S. who allegedly saw her practicing Falun Gong in the park, her friend did not know what the practice of Falun Gong looked like, and based her testimony on the statements of others. While Zheng argues that her friend did indeed witness her practicing Falun Gong, her argument is not sufficiently compelling to suggest error in the agency’s decision. See id.
Finally, the agency did not err in according little weight to the letter Zheng alleged was from her employer. See Xiao Ji Chen v. U.S. Dep’t Of Justice, 471 F.3d 315, 342 (2d Cir.2006). Zheng argues that her employer’s letter was not deficient because, although it was unsigned, “other diseernable features on the said letter would equally establish the reliability of the document at issue,” including “the official stamp of the factory” and the “official stationary of the factory.” However, the weight accorded to evidence is left largely in the hands of the IJ, and we see no reason to disturb this finding. See id.
Ultimately, substantial evidence supports the agency’s finding that Zheng failed to adequately corroborate her claim. See Corovic, 519 F.3d at 95. Thus, the agency properly found that she failed to meet her burden of establishing eligibility for asylum. See 8 U.S.C. § 1158(b)(1)(B)(ii). Because Zheng was unable to show the objective likelihood of persecution needed to make out an asylum claim, she was necessarily unable to meet the higher standard required to succeed on a claim for withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006).
Finally, as the Government notes, Zheng failed to challenge the denial of her application for CAT relief in her brief to the BIA or to this Court. As a result, we deem this claim abandoned. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.
. Zheng does not acknowledge the changes that the REAL ID Act worked to the standards for reviewing corroboration findings, and cites only pre-REAL ID Act caselaw. Moreover, Zheng does not allege error in the agency's finding regarding her corroborating evidence, and incorrectly contends that the agency rendered an adverse credibility finding — even in the face of explicit statements by both the IJ and the BIA that Zheng was credible. In this respect, Zheng has come perilously close to waiving any challenge to the agency’s denial of relief. Nonetheless, because Zheng challenges the agency's reliance on the deficiencies in her documentary evidence, we consider her petition for review. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471735/ | SUMMARY ORDER
Appellant Elena Chitoiu, pro se, appeals the district court’s grant of summary judgment in favor of the Appellees in Appellant’s action to recover long term disability benefits under the Employment Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001, et seq. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review an order granting summary judgment de novo, and ask whether the district court properly concluded that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003).
Here, we find that the district court properly granted summary judgment. At the outset, the district court correctly determined that the appropriate standard of review was the arbitrary and capricious standard, based on the language in the plan. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989); Miller v. United Welfare Fund, 72 F.3d 1066, 1070 (2d Cir.1995). Applying that standard, under which a denial of benefits will be reversed “only if it was without reason, unsupported by substantial evidence or erroneous as a matter of law,” Pagan v. NYNEX Pension Plan, 52 F.3d 438, 442 (2d Cir.1995)(inter-nal quotation omitted), the district court correctly found that there was substantial evidence to support Appellees’ determination that Appellant had not met her burden of showing that she was unable to perform any occupation for which she was reasonably fitted. Specifically, the determination was supported by evidence, undisputed by Appellant, demonstrating that she had obtained work as a teacher, and that her physician and her psychiatrist had both released her to perform work in that field. Nor was there any support in the record for Appellant’s argument that the “any occupation” definition of disability was not the applicable standard under the plan.
*627We have carefully considered Appellant’s remaining claims and find them to be without merit.
For the foregoing reasons, the judgment of the district court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471737/ | SUMMARY ORDER
Luis Marshall, the superintendent of Wallkill Correctional Facility, appeals from a judgment of the district court granting Stephen G. Schulz’s 28 U.S.C. § 2254 petition for a writ of habeas corpus. We assume the parties’ familiarity with the facts, proceedings below, and specification of issues on appeal.
The district court granted the writ based on ineffective assistance of counsel, finding that Schulz’s trial counsel had been ineffective in two respects. First, counsel failed to interview Otilia Ruiz, one of only two eyewitnesses to the robbery Schulz allegedly committed. Second, counsel did not call an available alibi witness, Anthony Tralongo. The district court also found that both of these errors prejudiced Schulz. We affirm, holding that the failure to make reasonable efforts to interview Ruiz fell below “an objective standard of reasonableness,” Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); “undermine[d] confidence in the outcome” of his trial, thus prejudicing Schulz, id. at 694, 104 S.Ct. 2052; and therefoi’e deprived Schulz of his Sixth Amendment right to reasonably effective counsel, see id. at 685-86, 104 S.Ct. 2052. Cognizant that the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, requires deference to the state courts and allows a federal court to grant a writ of habeas corpus only if it concludes that the state court’s adjudication of the claim “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), we nonetheless conclude that the New York Court of Appeals unreasonably applied Strickland to the facts of this case. We do so not because we have concluded in our independent judgment that the state court reached an erroneous or incorrect conclusion under Strickland, but rather because of its unreasonable application of Strickland to counsel’s failure to interview Ruiz. See Brisco v. Ercole, 565 F.3d 80, 87-88 (2d Cir.2009) (discussing the deference owed to state courts under § 2254). Having resolved this case on the basis of counsel’s failure to interview Ruiz, we need not reach counsel’s failure to call Tralongo.
The Supreme Court has long recognized that “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052. “Prevailing norms of practice as reflected in American Bar Association standards and the like are guides to determining what is reasonable, but they are only guides.” Id. at 688, 104 S.Ct. 2052 (internal citation omitted); see also Rompilla v. Beard, 545 U.S. 374, 387, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (using an ABA standard to find an investigation inadequate); Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (same). The relevant standard in effect at the time of Schulz’s trial provided:
Defense counsel should conduct a prompt investigation of the circum*629stances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused’s admissions or statements to defense counsel of facts constituting guilt or the accused’s stated desire to plead guilty.
ABA Standards for Criminal Justice 4-4.1(a) (3d ed.1993).
This was a simple case. There were two eyewitnesses, one alibi witness, and no physical evidence. As pointed out by the dissent in the New York Court of Appeals, Ruiz was the more important of the two eyewitnesses because (1) “[s]he was the one whom the robber held at knifepoint,” and (2) the other eyewitness did not view the actual crime although he saw the perpetrator at the scene just prior to the robbery. People v. Schulz, 4 N.Y.3d 521, 531-32, 797 N.Y.S.2d 24, 829 N.E.2d 1192 (2005) (Rosenblatt, J, dissenting in part). Under these circumstances, any reasonably competent attorney would have made vigorous efforts to interview Ruiz prior to the trial. Indeed, Schulz’s counsel did not claim that he made a strategic decision not to interview Ruiz. Instead he claimed that he tried to interview her but was unsuccessful.
Therefore, the issue before us is the reasonableness of counsel’s efforts. Counsel claimed, without explanatory detail, that he “made an effort to find Otilia Ruiz, the main eyewitness, but had difficulty contacting her.” He also claimed that on the day Ruiz was scheduled to testify, he asked the prosecutor for permission to interview her and was refused. We conclude that counsel’s efforts were not reasonable based in part on the trial court’s finding that defense counsel could have “made [an] effort to seek an adjournment or otherwise enlist the court’s assistance in securing an opportunity to interview [Ruiz] before she took the stand” and the Appellate Division’s conclusion that counsel did not exercise due diligence in attempting to find Ruiz. In addition, the prosecutor denied that defense counsel sought her permission to interview Ruiz. The basis for the New York Court of Appeals’ determination that Schulz did not receive ineffective assistance of counsel with respect to Ruiz is not clear. We hold, however, that it would constitute an unreasonable interpretation of Supreme Court precedent for the state courts to have found that counsel’s performance with respect to Ruiz was consistent with “an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052.
We also hold that the state courts could not reasonably have found that Schulz failed to demonstrate prejudice. Ruiz failed to identify Schulz at trial and when questioned by new counsel after the trial, Ruiz quite definitively identified another man, Anthony Guilfoyle, as the robber. If she had been interviewed by counsel before the trial, she likely would have made the same identification, and her testimony that Guilfoyle committed the robbery would have lent force to her denial that Schulz was the perpetrator. Further, Ruiz’s identification of Guilfoyle would have undermined any suggestion that she was too scared or confused to identify Schulz. While certain aspects of Ruiz’s testimony might have been impeached, her testimony that the other eyewitness, Anthony Velasquez, attempted to influence her identification and testimony would have added to pre-existing doubts concerning his credibility. For example, armed with the knowledge that Ruiz’s police statement might not accurately convey the precise description she sought to provide *630to the police, counsel could have clarified what she meant when she said her perpetrator was “very big” and had “rotten teeth.” There was no physical evidence in this case and Velasquez — the only witness tying Schulz to the crime — was significantly impeached by his conversation with an investigating officer about a pending gun possession charge and would have been further impeached by the information provided by Ruiz. Under these circumstances, Strickland cannot be reasonably applied to find a lack of prejudice. See 466 U.S. at 696, 104 S.Ct. 2052 (“[A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.”); see also Wilson v. Mazzuca, 570 F.3d 490, 506-507 (2d Cir.2009) (emphasizing that case against petitioner consisted of a single eyewitness and no physical evidence in holding that state courts could not reasonably have found a lack of prejudice from counsel’s ineffective assistance).
Having concluded that the New York Court of Appeals unreasonably applied Strickland in determining that counsel’s failure to interview Ruiz did not constitute ineffective assistance of counsel, we need not and do not address counsel’s failure to call Tralongo. We affirm the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471739/ | SUMMARY ORDER
Petitioner Roopnarine Lall, a native and citizen of Trinidad and Tobago, seeks review of the November 30, 2007 order of the BIA affirming the October 3, 2006 decision of Immigration Judge (“IJ”) Patricia A. Rohan denying his motion to reopen to apply for adjustment of status. In re Roopnarine Lall, No. A070 700 338 (B.I.A. Nov. 30, 2007), aff'g No. A070 700 338 (Immig. Ct. N.Y. City, Oct. 3, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA does not expressly “adopt” the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning, we may consider both decisions for the sake of completeness. Wang chuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.2006). Ordinarily we review the agency’s denial of a motion to reopen for abuse of discretion. See Azmond Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). However, we lack jurisdiction to review the agency’s refusal to reopen a case sua sponte because such a decision is “entirely discretionary.” Id. at 518.
We have previously recognized the BIA’s holding that “an in absentia deportation order need not always be rescinded before it can be reopened.” Song Jin Wu v. INS, 436 F.3d 157, 163 (2d Cir.2006) (citing Matter of M-S-, 22 I. & N. Dec. 349, 352-56 (BIA 1998) (en banc)). When an alien ordered deported in absentia seeks reopening to apply for a form of relief that was unavailable at the time of his hearing before the IJ, the ordinary motion to reopen requirements apply. Matter of M-S-, 22 I. & N. Dec. at 356-57; 8 C.F.R. § 1003.23(b) (Motions to Reopen Before the IJ).
Lall’s September 2006 motion to reopen was filed over twelve years after the IJ ordered him deported in absentia. Lall does dispute that his motion was untimely, and challenges only the IJ’s refusal to reopen his deportation proceedings pursuant to her sua sponte authority. 8 C.F.R. § 1003.23(b)(1). We lack jurisdiction to consider such an argument. See Azmond Ali, 448 F.3d at 518. Finally, the government properly asserts that, even crediting Lall’s argument that the BIA erred in failing to review the IJ’s order denying his motion to reconsider, the error was harmless where we otherwise lack jurisdiction to consider the agency’s denial of his motion to reopen. See Khan v. Gonzales, 495 F.3d 31, 34 (2d Cir.2007) (citing Martinez-Maldonado v. Gonzales, 437 F.3d 679, 683 (7th Cir.2006)).
For the foregoing reasons, the petition for review is DISMISSED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471741/ | SUMMARY ORDER
Petitioner Yong Chen, a native and citizen of the People’s Republic of China, seeks review of a February 25, 2008 order of the BIA affirming the February 15, 2007 decision of Immigration Judge (“IJ”) Robert D. Weisel, denying his motion to reopen his removal proceedings. In re Yong Chen, No. A076 505 693 (B.I.A. Feb. 25, 2008), aff’g No. A076 505 693 (Immig. Ct. N.Y. City Feb. 15, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam).
The BIA properly dismissed Chen’s appeal from the IJ’s denial of his untimely motion to reopen. See 8 C.F.R. § 1003.2(c)(2). In some circumstances, the time limitation applicable to motions to reopen may be equitably tolled to accommodate claims of ineffective assistance of counsel. See Cekic v. INS, 435 F.3d 167, 170 (2d Cir.2006). However, an individual alleging ineffective assistance of counsel must demonstrate, among other things, that he exercised due diligence during the period he seeks to toll. See Iavorski v. INS, 232 F.3d 124, 134 (2d Cir.2000). Here, as the BIA found, Chen failed to establish that he exercised due diligence in pursuing his ineffective assistance of counsel claim. See Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir.2007). Indeed, he never explained to the agency what steps he took to pursue his case in the time he sought to toll. To the extent Chen attempts to do so now, his arguments are unexhausted. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007). Accordingly, we find no abuse of discretion in the BIA’s rejection of Chen’s ineffective assistance of counsel claim. See Jian Hua Wang, 508 F.3d at 715; Kaur, 413 F.3d at 233-34; Matter of Compean, 24 I. & N. Dec. 710, 732-35 (A.G.2009).
Furthermore, the BIA did not err in denying Chen’s untimely motion to reopen based on changed country conditions. See 8 U.S.C. § 1229a(c)(7)(C)(ii). Chen argues that the BIA erred by finding that he failed to demonstrate materially changed country conditions sufficient to excuse his untimely motion to reopen or his prima facie eligibility for relief. However, these arguments fail where we have previously reviewed the BIA’s consideration of similar evidence in the context of an untimely motion to reopen and have found no error in its conclusion that such evidence was insufficient to establish materially changed country conditions or an objectively reasonable fear of persecution. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169-72 (2d Cir.2008). Finally, we decline to consider Chen’s unexhausted argument that he will suffer economic persecution if returned to China as he failed to raise that ai’gument in his brief to the BIA. See Lin Zhong, 480 F.3d at 119-20.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471743/ | SUMMARY ORDER
Petitioner Bary Maiga, a native and citizen of Burkina Faso, seeks review of the April 16, 2008 order of the BIA affirming the April 27, 2006 decision of the Immigration Judge (“IJ”) George T. Chew denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Bary Maiga, No. A98 648 345 (B.I.A. Apr. 16, 2008), aff'g No. A98 648 345 (Immig. Ct. N.Y. City Apr. 27, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA does not expressly “adopt” the IJ’s decision, but its brief opin*635ion closely tracks the IJ’s reasoning, we may consider both the IJ’s and the BIA’s opinions for the sake of completeness. See Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact, including whether a petitioner’s acts rendered him a “persecutor” under the INA. Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009). However, we review the agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.2007). Maiga does not petition for review of the agency’s denial of asylum and failed to sufficiently challenge the agency’s denial of his CAT claim in either his brief to the BIA or his brief to this Court. Therefore, we deem those claims abandoned. See Gui Yin Liu v. INS, 508 F.3d 716, 723 n. 6 (2d Cir.2007).
An alien who “ordered, incited, assisted, or otherwise participated in the persecution of an individual because of the individual’s race, religion, nationality, membership in a particular social group, or political opinion” is not eligible for withholding of removal under 8 U.S.C. § 1231(b)(3). See 8 U.S.C. §§ 1231(b)(3)(B)(i); 8 C.F.R. § 1208.16(d)(2). In assessing ineligibility for relief under these provisions, “[w]here the conduct was active and had direct consequences for the victims, we concluded that it was ‘assistance in persecution’ ... [but][w]here the conduct was tangential to the acts of oppression and passive in nature, however, we declined to hold that it ... [was] assistance.” Zhang Jian Xie v. INS, 434 F.3d 136, 143 (2d Cir.2006). “[T]he mere fact that [the petitioner] may be associated with an enterprise that engages in persecution is insufficient by itself to trigger the effects of the persecutor bar.” Xu Sheng Gao v. U.S. Att’y Gen., 500 F.3d 93, 99 (2d Cir.2007). Rather, the evidence must show a link between the petitioner’s specific actions and the alleged persecution. Id. at 101-02.
To determine whether a petitioner’s conduct triggers the persecutor bar, we must consider: (1) whether the alien was involved in persecution, under the same definition used to define a refugee; (2) whether the persecution was on account of the victim’s protected status — i.e., whether a nexus established; (3) whether the alien’s conduct “assisted” in the persecution, as defined in, e.g., Xu Sheng Gao and Zhang Jian Xie; and (4) whether the alien had sufficient knowledge that his actions may have assisted in persecution. See Balachova v. Mukasey, 547 F.3d 374, 384-85 (2d Cir.2008).1
Our review of the record leads us to conclude that the agency erred in finding that Maiga was statutorily ineligible for withholding of removal as a persecutor. Maiga was a member of the presidential guards in Burkina Faso, was aware that detainees were being persecuted, and had himself participated in the arrest of two political dissidents. However, contrary to the agency’s findings, the record shows that Maiga’s responsibilities as a guard were limited to chauffeuring government officials, and with respect to the two arrests he described, Maiga played only a *636tangential role that had no direct consequences for the arrested individuals. See Xu Sheng Gao, 500 F.3d at 99; Zhang Jian Xie, 434 F.3d at 143. Specifically, Maiga remained in his car when the incidents occurred, and, following their arrests, the suspects were placed in another car, after which Maiga had no further contact with them. Moreover, there was insufficient evidence that the arrested individuals were later persecuted, as they were released, unharmed, a few hours later.
Therefore, because Maiga’s actions had no direct impact on the arrested individuals, but were merely tangential in nature, and there is no evidence that the arrested individuals were persecuted on those occasions, the agency erred in determining that Maiga had assisted in persecution and was ineligible for withholding of removal under 8 U.S.C. § 1231(b)(3)(B)(i). See Weng, 562 F.3d at 515-16; Balachova, 547 F.3d at 386; Zhang Jian Xie, 434 F.3d at 143.
For the foregoing reasons, the petition for review is GRANTED, the order of the BIA is VACATED and the case is REMANDED for further proceedings. As we have completed our review, the stay of removal that the Court previously granted in this petition is VACATED.
. When we described these four considerations in Balachova v. Mukasey, we assumed that there was no voluntariness exception to the persecutor bar. The Supreme Court has since undermined the basis of our assumption, see Negusie v. Holder, - U.S. -, 129 S.Ct. 1159, 173 L.Ed.2d 20 (2009), although it did not decide whether such an exception exists. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471745/ | SUMMARY ORDER
Plaintiff-Appellant Kalliopi Sígala, through counsel, appeals from the orders of the United States District Court for the Eastern District of New York (Townes, J.), denying Appellant’s motion to reopen the case following dismissal of the complaint for failure to prosecute and Appellant’s motion for reconsideration of the denial. We assume the parties’ familiarity with the facts and procedural history.
We review a district court order denying a motion pursuant to Federal Rule of Civil Procedure 60(b) for abuse of discretion. See Transaero, Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724, 729 (2d Cir.1998). “A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Id.
Although we have confirmed that the district court has the authority to dismiss an action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b), we have held that such action should be taken “only in the most extreme circumstances.” U.S. ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 250-51 (2d Cir.2004). The propriety of dismissal for failure to prosecute is based on the following factors: (1) whether the plaintiffs failure to prosecute caused a delay of significant duration; (2) whether there was notice to plaintiff that further delay would result in dismissal; (3) likely prejudice to defendant because of further delay; (4) a balance between court calendar congestion against plaintiffs right to an opportunity for a day in court; and (5) the efficacy of lesser sanctions. Id. at 254. “No one factor is dispositive, and ultimately we must review the dismissal in light of the record as a whole.” Id.
In ruling on Appellant’s motions to reopen and for reargument, as well as in the underlying dismissal, the district court did not adequately address these factors or sufficiently explain its reasoning to enable us to review the district court’s reasoning. See Martens v. Thomann, 273 F.3d 159, 180 (2d Cir.2001) (holding that “[although the district court [was] not required to discuss each of the factors on the record, a decision to dismiss stands a better chance on appeal if the appellate court has the benefit of the district court’s reasoning”) (internal quotation marks omitted). The record reveals that, while there was a significant delay between the district court’s order of dismissal in January 2005 and the November 2007 motion to reopen the case, there was some evidence that Appellant did not receive actual notice of the possibility of dismissal. Further, there was significant court action during this period. Indeed, Magistrate Judge Go recommended that the case be reopened “since the only reason [Appellant’s counsel] didn’t respond to an order of impending dismissal was that [the] order was sent to a [different attorney].” There is also evidence of various communications between Appellant’s counsel and Magistrate Go from December 2002 to January 2007.
Moreover, there was no evidence of prejudice to Appellee, who did not oppose Appellant’s request to reopen the case, or of congestion of the district court’s docket. Similarly, there was no indication that the district court considered any lesser sanctions prior to dismissing the complaint. By failing to adequately address the above-listed factors, the evidence submitted by Appellant, or the magistrate’s rec*638ommendation that the ease be reopened, the district court abused its discretion. See id.
For the reasons stated above, the orders of the district court are VACATED and the case is REMANDED for the further proceedings. On remand the district court may choose to restore this matter to the calendar. If it does not do so, it should enter an order thoroughly explaining its consideration of the pertinent factors and the evidence offered by appellant. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471747/ | SUMMARY ORDER
Plaintiff-appellant Leonides Gervacio (“plaintiff’) appeals from a July 9, 2008 judgment of the District Court, which granted the motion of the defendants Bar*639ry S. Zall (“Zall”) and MMCA Leasing, Ltd. (“MMCA”) for summary judgment. Plaintiff filed the underlying action in the Supreme Court of the State of New York, New York County, and the defendants removed the case to federal court in March 2005. Plaintiff asserted claims for negligence against both defendants arising from a traffic accident in New York City. On appeal, plaintiff primarily argues the following points: (1) that he is entitled to the benefit of a lesser burden of proof in responding to a motion for summary judgment on account of his amnesia, allegedly caused by the accident in question; (2) that the District Court erred in finding that “contradictions” in Zall’s testimony did not create a genuine issue of material fact; and (B) that the District Court erred in not considering the contents of a police report prepared shortly after the accident. We assume the parties’ familiarity with the remaining factual and procedural history of the case.
We review a district court’s grant of summary judgment de novo, construing all facts in favor of the non-moving party. See, e.g., Graves v. Finch Pruyn & Co., 457 F.3d 181, 183 (2d Cir.2006); Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir.2005). Summary judgment is appropriate only upon a showing “that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c).
With respect to plaintiff’s first argument, the District Court observed that “[u]nder Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744 (1948), an amnesiac plaintiff may be held to relaxed standards of evidentiary proof on summary judgment” but that where “ ‘there is absolutely no showing of facts from which negligence may be inferred, the Nosewor-thy rule is inapplicable.’ ” Gervacio v. Zall, No. 05-cv-3224, slip op. at 7-8 (S.D.N.Y. July 8, 2008) (quoting Mildner v. Wagner, 89 A.D.2d 638, 453 N.Y.S.2d 100, 101 (1982)). It also explained that, to invoke the rule, “a plaintiff must ‘present expert evidence, establishing, by clear and convincing evidence, his memory loss and its causal relationship to the defendants’ conduct.’” Id. at 8 (quoting Luscher v. Arrua, 21 A.D.3d 1005, 801 N.Y.S.2d 379 (2005)). We agree with the District Court that plaintiff’s “failure] to put forth any evidence in support of his position that Defendant Zall” was negligent renders No-seworthy inapposite and note that, in any event, plaintiff failed to supply any expert evidence demonstrating the existence of his amnesia or a causal relationship with the collision with Zall. Id. at 17-18.
Turning to plaintiffs second argument, we agree with the District Court that the purported “contradictions” or “inconsistencies” in Zall’s testimony do not create a genuine issue of material fact. Zall testified consistently that he observed the traffic signal turn green as he approached the intersection of 94th Street and First Avenue and then turn yellow, and finally red, as he entered the intersection and began to turn onto First Avenue. Plaintiffs contention that the light could not possibly have turned from red, to green and back to red again in such a short span of time is unsupported by any evidence and rests instead upon “ ‘mere speculation or conjecture.’ ” See id. at 7 (quoting Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986)).
Plaintiffs third and final argument is that the District Court erred in failing to consider the contents of a police report prepared soon after the accident. According to plaintiff, a diagram in the report depicts the scene of the accident at the time that police arrived and, furthermore, that depiction, along with other statements in the report, contradict defen*640dant Zall’s testimony about his conduct after the collision. Consideration of the police report, however, would have been inappropriate in light of plaintiffs failure to lay any foundation for the applicability of a hearsay exception, or even to establish what the diagram purports to depict. Cf. Fed.R.Evid. 803(8) advisory committee’s note (“Police reports have generally been excluded except to the extent to which they incorporate firsthand observations of the officer.”) (emphasis added); Fed. R.Evid. 803(6) advisory committee’s note (noting that information in a police report supplied by a bystander ordinarily is inadmissible). Absent some foundation, it is unclear whether the diagram depicts the scene as it appeared upon the police officer’s arrival or whether it is based upon a description of how the accident occurred according to another officer, an eyewitness or even one of the parties. Furthermore, we agree with the District Court that Zall’s conduct after the accident is irrelevant to whether he acted negligently in the moments leading up to the collision. Ger-vasio, No. 05-cv-3224, slip op. at 15.
CONCLUSION
We have considered all of the plaintiffs arguments and find them to be without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471806/ | SUMMARY ORDER
Cire Dem, a native and citizen of Mauritania, seeks review of a June 24, 2008 order of the BIA, affirming the November 8, 2006 decision of Immigration Judge (“IJ”) Paul A. DeFonzo, which pretermit-ted Dem’s application for asylum and denied his application for withholding of removal and relief under the Convention Against Torture (“CAT”). In re Cire Dem, No. A079 572 013 (B.I.A. June 24, 2008), aff'g No. A079 572 013 (Immig. Ct. N.Y. City Nov. 8, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA agrees with the IJ’s adverse credibility determination and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, we review the IJ’s decision including the portions not explicitly discussed by the BIA. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). Questions of law and the application of law to undisputed fact are reviewed de novo. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
I. Asylum
The IJ pretermitted Dem’s application for asylum based on Dem’s failure to establish his date of entry into the United States. See 8 U.S.C. § 1158(a)(2)(B). We generally lack jurisdiction to review challenges to such findings. See 8 U.S.C. § 1158(a)(3). It was Dem’s burden to establish his date of entry with clear and convincing evidence and the IJ found that the evidence he presented failed to meet that burden. The balance of Dem’s arguments challenging the IJ’s one-year bar finding are precisely the type of factual challenge we lack jurisdiction to review. See 8 U.S.C. § 1158(a)(3). We thus dismiss the petition for review to that extent.
II. Withholding of Removal and CAT Relief
Dem’s brief to the BIA argued that the IJ’s “numerous reasons” for rendering an adverse credibility determination “were minor inconsistencies and not essential or material to [his] claim.” The BIA upheld the IJ’s credibility determination, but specifically noted that “[o]n appeal, [Dem] argues generally that he testified credibly, but does not specifically address the bases for the [IJ]’s adverse credibility finding.” Dem’s brief to this Court challenges the IJ’s credibility findings with much greater specificity but we do not consider those *709arguments. Petitioners must exhaust any challenge to the denial of a category of relief. See 8 U.S.C. § 1252(d)(1). We generally will not consider arguments regarding individual issues that were not exhausted before the agency. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107 n. 1, 122-23 (2d Cir.2007). Accordingly, a petitioner must challenge all findings that are dispositive of his claims, and the failure to do so is fatal to his petition for review. See Steevenez v. Gonzales, 476 F.3d 114, 117-118 (2d Cir.2007).
Because we find that Dem failed to exhaust any challenge to the bases of the IJ’s adverse credibility determination, and because that finding was dispositive of his application for withholding of removal and CAT relief, we deny his petition for review. See Steevenez, 476 F.3d at 117-118.
For the foregoing reasons, the petition for review is DISMISSED in part and DENIED in part. 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(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471812/ | SUMMARY ORDER
Alice Weiss appeals from a March 27, 2008, 2008 WL 821813, summary judgment dismissing her complaint, which alleged that her former employer, Morgan Stanley Investment Management (“Morgan Stanley”), discriminated against her on the basis of gender, age, national origin and religion in violation of state and federal law. The court’s judgment also dismiss Weiss’s claim that she was unlawfully retaliated against for having made a discrimination complaint shortly before her termination. We assume the parties’ familiarity with the facts, proceedings below, and specification of the issues on appeal.
Weiss began work at Morgan Stanley’s predecessor, Dean Witter on March 8, 1982. Weiss began her career as a statistician, and was promoted to assistant portfolio manager in 1987. In 1990, Weiss was subsequently appointed as a vice president. In 1997, Dean Witter merged with *714Morgan Stanley. For the three years pri- or to her termination on September 30, 2003, she worked in Morgan Stanley’s New York offices in the Global Investment Group (“GIG”).
Most recently in her time with Morgan Stanley, plaintiff was responsible for the management of two different funds: Morgan Stanley’s KLD Social Index Fund and the Value Added Market Series Mutual Fund (the “Value Added Fund”), a fund she proposed and Morgan Stanley launched. The Value Added Fund required active management, including regular rebalancing, as opposed to a pure index fund that required no active management. However, in 2003, the Value Added Fund changed to a pure index fund, which eliminated the need for active management.
At the same time, the Global Investment Group was reviewing its staffing with an eye toward cutting the budget, including a reduction in force (“RIF”). The review determined that the Value Added Fund, now a passive fund, no longer needed a dedicated portfolio manager. Morgan Stanley decided to eliminate one of the two index portfolio management positions, one of which was held by Weiss, the other of which was held by Kevin Jung, a younger male employee. Morgan Stanley alleges legitimate business concerns, rather than discriminatory animus, motivated the choice of Jung over Weiss.
On September 25, 2003, Weiss met with her supervisor, Guy Rutherford to see if she was being considered for promotion to executive director. Rutherford told her she was not. Weiss told Rutherford she thought she was being discriminated against on the basis of age and gender. Rutherford immediately reported Weiss’ claim to the human resources department. On September 30, 2003, plaintiff received her notice of termination. Morgan Stanley asserts that the decision to include Weiss in the RIF was memorialized in a number of documents generated before September 25, 2003, including several RIF lists.
We review a district court’s grant of summary judgment de novo. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). We are required to resolve all ambiguities and draw all inferences in favor of the nonmovant. See Nationwide Life Ins. Co. v. Bankers Leasing Assoc. Inc., 182 F.3d 157, 160 (2d Cir.1999). “A plaintiff may prevail on a claim for retaliation even when the underlying conduct complained of was not in fact unlawful ‘so long as he can establish that he possessed a good faith, reasonable belief that the underlying challenged actions of the employer violated [the] law.’ ” See Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir.2002) (citation omitted). Claims for retaliation are analyzed under the same burden-shifting framework established for Title VII eases. Id. In order to establish a prima facie case of retaliation, Weiss must show that: (1) she engaged in protected activity; (2) the employer was aware that she engaged in such behavior; (3) the employer took adverse employment action against her; and (4) a causal connection exists between the alleged adverse action and the protected activity. Id. Once plaintiff sets forth a prima facie case, defendant then bears the burden of demonstrating a non-discriminatory basis for the complained-of action. Id. at 721. If defendant meets its burden, “the plaintiff must point to evidence that would be sufficient to permit a rational factfinder to conclude that the employer’s explanation is merely a pretext for impermissible retaliation.” Id.
The district court found — and the parties do not dispute — that Weiss adequately set forth the elements of her prima facie case. The district court then held Morgan Stanley set forth a legitimate, non-retaliatory reason for termination — that Weiss *715was selected for inclusion in a large-scale IF as early as June or July of 2003 — thus breaking the connection between Weiss’s complaint of discrimination and her termination, as she could not be retaliated against for a complaint she had not yet made.
On appeal, Weiss primarily argues that the evidence submitted by Morgan Stanley in support of its motion for summary judgment was never properly authenticated, rendering it inadmissible. As conceded by Weiss’ counsel at oral argument, however, this objection was never raised below. While “[i]t is true that on a motion for summary judgment, supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein,” this rule does not “require that parties authenticate documents where ap-pellee did not challenge the authenticity of the documents in the district court.” H. Sand & Co., Inc. v. Airtemp Corp., 934 F.2d 450, 454 (2d Cir.1991) (internal quotation marks and citation omitted). Weiss’ failure to raise the authentication issue below is fatal to her claims on appeal.
We have considered plaintiffs remaining arguments and find them to be without merit.
For the foregoing reasons, the judgment and order of the district court are AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471814/ | SUMMARY ORDER
Petitioner Gaoussou Fofana, a native and citizen of the Ivory Coast, seeks review of the August 19, 2008 order of the BIA affirming the January 10, 2007 decision of Immigration Judge (“U”) Douglas Sehoppert denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Gaoussou Fofana, No. A 079 131 905 (B.I.A. Aug. 19, 2008), aff'g *716No. A 079 131 905 (Immig. Ct. N.Y. City Jan. 10, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA agrees with the IJ’s conclusion that a petitioner is not credible and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, we review both the BIA’s and IJ’s opinions — or more precisely, we review the IJ’s decision including the portions not explicitly discussed by the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
I. Asylum
We lack jurisdiction to review the IJ’s decision insofar as Fofana’s application for asylum was pretermitted as untimely. See 8 U.S.C. § 1158(a)(3). While we retain jurisdiction to review constitutional claims and “questions of law,” 8 U.S.C. § 1252(a)(2)(D), Fofana has made no argument that would invoke our jurisdiction. Therefore, we dismiss the petition for review to that extent. See 8 U.S.C. § 1158(a)(3).
II. Withholding of Removal and CAT Relief
In finding Fofana not credible, the IJ cited: (1) his seven-year delay in filing his asylum application; (2) Fofana’s failure to disclose that he was arrested and convicted of a criminal offense in the U.S.; (3) the omission from the asylum application of any assertion that he was beaten on account of his religious activities; and (4) an inconsistency in testimony as to when he traveled from the Ivory Coast to Mali. Fofana’s brief to the BIA argued only that the IJ “abuse[d] his discretion when he questioned] Mr. Fofana’s credibility.” While Fofana challenges these findings in his brief to this Court, his arguments are unexhausted. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007).
In any event, Fofana’s arguments would be unavailing. Fofana argues that the IJ’s credibility findings went to “minor” issues that “did not go to the heart of his claim”; however, “an IJ may rely on any inconsistency or omission in making an adverse credibility determination as long as the ‘totality of the circumstances’ establishes that an asylum applicant is not credible.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008) (citing 8 U.S.C. § 1158(b)(1)(B)(iii)); see Matter of J-Y-C-, 24 I. & N. Dec. 260, 265 (BIA 2007).
For the foregoing reasons, the petition for review is DISMISSED in part and DENIED in part. As we have completed our review, 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(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471818/ | SUMMARY ORDER
Petitioner Mubera Duka petitions for review of a decision of the Board of Immigration Appeals (“BIA”) dated September 24, 2008, vacating the grant of asylum by Immigration Judge (“IJ”) Brigitte Lafor-est and ordering Duka removed from the United States. In re Mubera Duka, No. A95 148 756 (B.I.A. Sept. 24, 2008), rev’g No. A95 148 756 (Immig. Ct. N.Y. City Nov. 19, 2002). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA vacates the decision of the IJ, we review only the decision of the BIA. See Alibasic v. Mukasey, 547 F.3d 78, 84 (2d Cir.2008). We review the BIA’s factual findings under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B). We review questions of law, and the application of law to undisputed fact, de novo. See Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). The BIA reviews de novo questions of law decided by the IJ. 8 C.F.R. § 1003.1(d)(3)(H); see also In re A-S-B- 24 I. & N. Dec. 493, 496-97 (B.I.A.2008). Whether the facts found by the IJ are sufficient to establish that a petitioner has a well-founded fear of persecution upon return to her native country is a legal determination. In re A-S-B-, 24 I. & N. Dec. at 497.
Duka is an ethnic Albanian citizen of the Republic of Macedonia. In order to establish a well-founded fear of persecution a petitioner must demonstrate either (1) a reasonable possibility of persecution against herself as an individual or (2) a pattern or practice of persecution against persons in a group to which she belongs. See 8 C.F.R. § 208.13(b)(2); Jian Hui Shao v. Mukasey, 546 F.3d 138, 150 n. 6 (2d Cir.2008). In vacating the order of the IJ granting Duka asylum, the BIA determined that she had not demonstrated a “pattern or practice” of persecution against ethnic Albanians in Macedonia. It is not clear from the record, however, that the IJ undertook a “pattern or practice” analysis in assessing Duka’s asylum claim. See Mufied v. Mukasey, 508 F.3d 88, 91 (2d Cir.2007) (“We decline the government’s invitation to assume that the IJ made findings on the existence of a pattern or practice sub silentio merely because she *722considered evidence relevant to that question for another purpose.”). As Duka was therefore not made aware of the importance of directing the BIA’s attention to specific facts establishing a pattern or practice of persecution against ethnic Albanians in Macedonia, she should be given the opportunity to fully brief this issue before the BIA.
For the foregoing reasons, the petition for review is GRANTED, the order of the BIA is VACATED, and the case is REMANDED to the BIA for further proceedings consistent with this opinion. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471820/ | OPINION
PER CURIAM.
Appellant John Joseph Perry seeks review of the District Court’s order dismissing his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). We conclude that the appeal does not present a substantial question. Although we rest our decision in part on different grounds, we will summarily affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
I.
Perry, an inmate at SCI-Waymart, initiated a pro se civil action pursuant to 42 U.S.C. § 1983 against Lackawanna County Children & Youth Services (“CYS”) and three SCI-Waymart officials: Jodi Smith, Laura Banta, and Joseph Nish. In the complaint, Perry alleged that an individual named Joseph Pierro stole a letter Perry had sent to his girlfriend, Karen Marie Kuehner.1 According to Perry, Pierro provided the letter to Lackawanna County Children & Youth Services (“CYS”) and reported that the letter showed that “strong sexual contact” had occurred between Perry and Kuehner during an October 4, 2008, visit at which Perry’s two minor children were present.
Based upon the information in the letter, CYS allegedly contacted SCI-Waymart and requested an investigation into Perry’s behavior. Perry claimed that officials at SCI-Waymart wrongfully put a copy of the letter into his disciplinary file and used it as a basis to punish him. Specifically, Perry alleged that SCI-Waymart employee Jodi Smith viewed a videotape of the October 4, 2008, visit between Kuehner and Perry, and observed no rule infractions. However, based upon the contents of the letter and Smith’s review of a videotape of an October 11, 2008, visit between Kuehner and Perry at which no children were present, Smith concluded that “strong sexual contact” likely occurred as reported, and accordingly issued a misconduct report against Perry.2
According to the complaint, SCI-Way-mart granted Perry a formal hearing concerning the misconduct report.3 Perry allegedly wished to enter a plea of not guilty, but the hearing examiner, Laura Banta, proceeded as if Perry had entered a guilty plea. Without honoring Perry’s request for Banta to review the videotapes of the October 4 and 11 visits, Banta sanctioned Perry to 30 days of solitary confinement, 60 days without visiting privileges, and loss of institutional employment. Perry appealed to the prison review committee, the superintendent, and the chief hearing examiner, but the appeals were all denied based on Perry’s purported guilty plea.
*725Based upon these events, Perry claimed to have suffered violations of his constitutional rights. As relief, he sought to have his “record cleared of all reports concerning this claim,” criminal prosecution concerning “all false reports made against” him,4 and recovery of his costs and fees.
Because the District Court granted Perry permission to proceed informa pauper-is (“IFP”), it reviewed the complaint under the Prison Litigation Reform Act of 1995 (“PLRA”), 28 U.S.C. § 1915. On April 28, 2009, prior to service, the District Court concluded that Perry’s complaint was frivolous and dismissed it without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). This timely pro se appeal followed.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.5 Our standard of review is plenary. See Tourseher v. McCullough, 184 F.3d 236, 240 (3d Cir.1999). Because Perry is proceeding IFP, we must dismiss the appeal under 28 U.S.C. § 1915(e)(2)(B) if it lacks an arguable basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). We may summarily affirm if the appeal presents no substantial question. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6. We may affirm on grounds different from those relied upon by the District Court. See Morse v. Lower Merion School Dist., 132 F.3d 902, 904 (3d Cir.1997).
To establish a § 1983 civil rights claim, a claimant must show: “(1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.” Robb v. City of Philadelphia, 733 F.2d 286, 290-91 (3d Cir.1984) (citing Parrott v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981)). Liberally construing Perry’s pro se complaint, see Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir.2003), we conclude that Perry failed to state a § 1983 claim.
A.
CYS is an agency of Lackawanna County, Pennsylvania. To state a § 1983 claim against such a local governing body, Perry was required to allege that CYS had an established policy or custom that resulted in the alleged constitutional violations. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); see also Marran v. Marran, 376 F.3d 143, 155-56 (3d Cir.2004) (a prima facie claim against a county or its agency must involve an allegation of a policy or custom that directed or caused the constitutional deprivation). Perry’s complaint cannot be read to identify any custom or policy by CYS to satisfy the Monell requirement. Accordingly, dismissal was appropriate.
B.
We therefore turn to Perry’s claims against the three named SCI-Waymart officials, Smith, Banta, and Nish. Perry’s claims against the officials focus primarily on his personal letter to Kuehner: he contends that the officials should have known that the letter was stolen and should not *726have considered it, and that because the letter did not specify a date and location of the “strong sexual contact,” it did not provide “probable cause” for the investigation or disciplinary action against him.
Even affording Perry’s allegations the liberal construction they are due, we fail to see how Perry’s allegations concerning his letter to Kuehner can support a § 1983 claim against the SCI-Waymart officials. Perry specifically invoked the First, Fourth, and Ninth Amendments of the Constitution. With regard to the Fourth Amendment, Perry did not allege that anything was seized from him, and in any event, it is well established that “the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell.” Hudson v. Palmer, 468 U.S. 517, 526, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). With regard to the First Amendment, Perry did not claim any interference with his constitutionally-protected right to reasonable correspondence with the outside world, see Procunier v. Martinez, 416 U.S. 396, 418, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), overruled on other grounds, Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989), and a single instance of interference with his mail would not have been sufficient to constitute a First Amendment violation in any event. See Bieregu v. Reno, 59 F.3d 1445, 1452 (3d Cir.1995), overruled on other grounds, Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). Finally, we are not aware of any support for Perry’s claim that the Ninth Amendment protects against any of the events described in his complaint. Indeed, the Ninth Amendment does not independently provide a source of individual constitutional rights. See, e.g., Jenkins v. C.I.R., 483 F.3d 90, 92 (2d Cir.2007); Schowengerdt v. United States, 944 F.2d 483, 490 (9th Cir.1991).
Based upon our review, we conclude that the only potential § 1983 claim that Perry might have raised against the SCI-Way-mart officials would be a procedural due process claim relating to the disciplinary proceedings against him. In that regard, we have given particular consideration to Perry’s allegations that he sought to plead “not guilty” to the disciplinary infraction, but the SCI-Waymart officials failed to consider his proposed evidence (ie., review of the October 4 and 11 videotapes), imposed sanctions upon him, and denied his appeals, all based upon a purported guilty plea.
Not all disciplinary or punitive measures taken in a prison environment implicate a prisoner’s constitutional right to procedural due process. Rather, due process rights are only triggered where the prison “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Mitchell v. Horn, 318 F.3d 523, 531 (3d Cir.2003) (quoting Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)). Prisoners generally do not have inherent liberty interests in particular modes, places, or features of their confinement. See Hewitt v. Helms, 459 U.S. 460, 466-68, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), abrogated by Sandin, 515 U.S. at 483, 115 S.Ct. 2293.
Perry alleged that, as a result of the disciplinary proceedings, he was sanctioned to 30 days of solitary confinement, 60 days without visiting privileges, and loss of his institutional employment. These sanctions do not qualify as an “atypical or significant hardship” under Sandin. Thirty days of solitary confinement is not atypical. See Sandin, 515 U.S. at 486, 115 S.Ct. 2293. In addition, prisoners do not have constitutionally-protected interests in prison visitation or in holding a job. See Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 *727(1989); Block v. Rutherford, 468 U.S. 576, 588, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984); James v. Quinlan, 866 F.2d 627, 629 (3d Cir.1989). Because the sanctions imposed upon Perry were insufficient to trigger due process protections, Perry cannot state a procedural due process claim against the SCI-Waymart officials based upon his disciplinary proceedings.
III.
We have reviewed the record in this matter and conclude that there is no substantial question to be presented on appeal. Accordingly, we will summarily affirm the judgment of the District Court. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
. Perry alleged that the letter was in Kueh-ner's purse when Pierro stole it, and that Kuehner reported the theft to the Scranton Police Department.
. Perry also alleged that SCI-Waymart provided the misconduct report to CYS, which initiated its own investigation concerning the welfare of Perry's minor children during visits to SCI-Waymart. Ultimately, CYS found no evidence of neglect, although Perry complains that "the report has been added to [his] file ... and can be used in the family court for any proceeding pertinent to the plaintiff's custody of his minor children.”
.Perry also alleged that he filed two grievances and a request for review of the videotaped visits. SCI-Waymart officials denied the requests.
. Although Perry sought to have criminal charges brought against the defendants, such relief may not be obtained in a civil action under 42 U.S.C. § 1983.
. Although the District Court dismissed Perry’s complaint without prejudice, we have jurisdiction because the dismissal was pursuant to § 1915(e) and because any amendment of the complaint would be futile. See Deutsch v. United States, 67 F.3d 1080, 1083 (3d Cir.1995). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8472106/ | MEMORANDUM **
Alejandro Lopez Godinez appeals from his guilty-plea conviction and 78-month sentence imposed for possession of a firearm in furtherance of drug trafficking crimes, in violation of 18 U.S.C. § 924(c)(1)(A)®.
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Godinez’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471807/ | SUMMARY ORDER
Cire Dem, a native and citizen of Mauritania, seeks review of a June 24, 2008 order of the BIA, affirming the November 8, 2006 decision of Immigration Judge (“IJ”) Paul A. DeFonzo, which pretermit-ted Dem’s application for asylum and denied his application for withholding of removal and relief under the Convention Against Torture (“CAT”). In re Cire Dem, No. A079 572 013 (B.I.A. June 24, 2008), aff'g No. A079 572 013 (Immig. Ct. N.Y. City Nov. 8, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA agrees with the IJ’s adverse credibility determination and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, we review the IJ’s decision including the portions not explicitly discussed by the BIA. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). Questions of law and the application of law to undisputed fact are reviewed de novo. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
I. Asylum
The IJ pretermitted Dem’s application for asylum based on Dem’s failure to establish his date of entry into the United States. See 8 U.S.C. § 1158(a)(2)(B). We generally lack jurisdiction to review challenges to such findings. See 8 U.S.C. § 1158(a)(3). It was Dem’s burden to establish his date of entry with clear and convincing evidence and the IJ found that the evidence he presented failed to meet that burden. The balance of Dem’s arguments challenging the IJ’s one-year bar finding are precisely the type of factual challenge we lack jurisdiction to review. See 8 U.S.C. § 1158(a)(3). We thus dismiss the petition for review to that extent.
II. Withholding of Removal and CAT Relief
Dem’s brief to the BIA argued that the IJ’s “numerous reasons” for rendering an adverse credibility determination “were minor inconsistencies and not essential or material to [his] claim.” The BIA upheld the IJ’s credibility determination, but specifically noted that “[o]n appeal, [Dem] argues generally that he testified credibly, but does not specifically address the bases for the [IJ]’s adverse credibility finding.” Dem’s brief to this Court challenges the IJ’s credibility findings with much greater specificity but we do not consider those *709arguments. Petitioners must exhaust any challenge to the denial of a category of relief. See 8 U.S.C. § 1252(d)(1). We generally will not consider arguments regarding individual issues that were not exhausted before the agency. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107 n. 1, 122-23 (2d Cir.2007). Accordingly, a petitioner must challenge all findings that are dispositive of his claims, and the failure to do so is fatal to his petition for review. See Steevenez v. Gonzales, 476 F.3d 114, 117-118 (2d Cir.2007).
Because we find that Dem failed to exhaust any challenge to the bases of the IJ’s adverse credibility determination, and because that finding was dispositive of his application for withholding of removal and CAT relief, we deny his petition for review. See Steevenez, 476 F.3d at 117-118.
For the foregoing reasons, the petition for review is DISMISSED in part and DENIED in part. 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(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471811/ | SUMMARY ORDER
The defendants appeal from a judgment of the district court confirming the debt- or’s plan of reorganization and rendering judgment for the plaintiff in adversary proceeding number 02-03048. The plaintiff cross-appeals from the district court’s determination that the defendants were third party beneficiaries of a contract between the debtor and Client Distribution Services, Inc. (“CDS”), which is not a party to this suit. We assume the parties’ familiarity with the underlying facts and *712the procedural history of the case, and with the issues on appeal.
“An order of a district court issued in its capacity as an appellate court is subject to plenary review. We, therefore, will independently review the factual determinations and legal conclusions of the bankruptcy court. The bankruptcy court’s findings of fact will not be disturbed unless clearly erroneous. We review the bankruptcy court’s conclusions of law de novo.” In re PCH Assocs., 949 F.2d 585, 597 (2d Cir.1991) (internal citations omitted). Where, as here, a series of decisions by the district court and the bankruptcy court create a “law of the case,” we review all of the decisions that led to the creation of it. See id.
We have reservations about the district court’s decision with respect to the defendants’ third party beneficiary status. In general, when two parties contract for a payment from one party to another party with the understanding that the money will then be used by the second party to pay a third party, that third party is an incidental beneficiary of the contract, not an intended beneficiary, and is therefore not a third party beneficiary. See Restatement 2d of Contracts § 302 Illustration 3 (1981). Third party beneficiary status is established when the contracting parties intended to confer on the third party a right to require performance of the contract. See id., § 302; see also Foster Wheeler Broome Co., Inc. v. Co. of Broome, 275 A.D.2d 592, 713 N.Y.S.2d 92 (3d Dep’t 2000); Ahern v. Bd. of Educ. of City of Chicago, 133 F.3d 975, 983 (7th Cir.1998). In Septembertide Pub. B.V. v. Stein and Day, Inc., 884 F.2d 675 (2d Cir.1989), the intent to confer such a benefit was indicated by the fact that a second contract, to which the purported third party beneficiary of the disputed contract was an actual party, was executed “virtually simultaneously” with the disputed contract, and in fact made reference to that contract. Id. at 679. In this case, by contrast, the debtor’s contract with CDS did not indicate an intent to confer a benefit on the defendants, whose long-standing contracts with the debtor were already established and who were not consulted about the new contract with CDS.
But we need not decide the question of third party beneficiary status, because even if the defendants have such status, it ultimately would not benefit them here. The plaintiff has established an enforceable security interest in the debtor’s accounts under section 9-203(b) of the Uniform Commercial Code. While third party beneficiary status would create in the defendants a right to performance as against CDS, it would not alter the defendants’ rights as against the debtor, Publisher’s Consortium, or the plaintiff, inasmuch as “third-party beneficiaries generally have no greater rights in a contract than does the promisee.” United Steelworkers of Am., AFL-CIO-CLC v. Rawson, 495 U.S. 362, 375, 110 S.Ct. 1904, 109 L.Ed.2d 362 (1990). As unsecured creditors, the defendants’ rights to the monies in question were subordinated to the rights of the plaintiff, who is a secured creditor. See generally 11 U.S.C. § 1129(b)(2). While the third party beneficiary in September-tide successfully argued that the security agreement between the debtor and its secured creditor had not encompassed the monies in question, that determination was based on the fact that the contract creating third party beneficiary status had predated the security agreement. 884 F.2d at 682. Here, the security agreement predates the contract to which the defendants assert they were a third party beneficiary. The security agreement thus did not recognize a pre-existing property interest held by the defendants.
*713We have considered the defendants other arguments and find them to be without merit.
For the foregoing reasons, the judgment of the District Court is hereby AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471815/ | SUMMARY ORDER
Petitioner Gaoussou Fofana, a native and citizen of the Ivory Coast, seeks review of the August 19, 2008 order of the BIA affirming the January 10, 2007 decision of Immigration Judge (“U”) Douglas Sehoppert denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Gaoussou Fofana, No. A 079 131 905 (B.I.A. Aug. 19, 2008), aff'g *716No. A 079 131 905 (Immig. Ct. N.Y. City Jan. 10, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA agrees with the IJ’s conclusion that a petitioner is not credible and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, we review both the BIA’s and IJ’s opinions — or more precisely, we review the IJ’s decision including the portions not explicitly discussed by the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
I. Asylum
We lack jurisdiction to review the IJ’s decision insofar as Fofana’s application for asylum was pretermitted as untimely. See 8 U.S.C. § 1158(a)(3). While we retain jurisdiction to review constitutional claims and “questions of law,” 8 U.S.C. § 1252(a)(2)(D), Fofana has made no argument that would invoke our jurisdiction. Therefore, we dismiss the petition for review to that extent. See 8 U.S.C. § 1158(a)(3).
II. Withholding of Removal and CAT Relief
In finding Fofana not credible, the IJ cited: (1) his seven-year delay in filing his asylum application; (2) Fofana’s failure to disclose that he was arrested and convicted of a criminal offense in the U.S.; (3) the omission from the asylum application of any assertion that he was beaten on account of his religious activities; and (4) an inconsistency in testimony as to when he traveled from the Ivory Coast to Mali. Fofana’s brief to the BIA argued only that the IJ “abuse[d] his discretion when he questioned] Mr. Fofana’s credibility.” While Fofana challenges these findings in his brief to this Court, his arguments are unexhausted. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007).
In any event, Fofana’s arguments would be unavailing. Fofana argues that the IJ’s credibility findings went to “minor” issues that “did not go to the heart of his claim”; however, “an IJ may rely on any inconsistency or omission in making an adverse credibility determination as long as the ‘totality of the circumstances’ establishes that an asylum applicant is not credible.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008) (citing 8 U.S.C. § 1158(b)(1)(B)(iii)); see Matter of J-Y-C-, 24 I. & N. Dec. 260, 265 (BIA 2007).
For the foregoing reasons, the petition for review is DISMISSED in part and DENIED in part. As we have completed our review, 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(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471817/ | SUMMARY ORDER
Appellant April Cody appeals the district court’s grant of summary judgment in her employment discrimination action brought pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3, and New York Executive Law §§ 296 and 297. Cody argues, inter alia, that the district court erred in finding she failed to raise a question of material fact in dismissing her claims of disability discrimination and retaliation against Appellees County of Nassau and Nassau Community College (together, “Nassau County”).
Nassau County argues, inter alia, that the district court properly granted its motion for summary judgment. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review de novo orders granting summary judgment, and focus on whether the district court properly concluded that there was no genuine issue as to any material fact and the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). We are required to resolve all ambiguities and draw all inferences in favor of the nonmovant. See Nationwide Life Ins. Co. v. Bankers Leasing Assoc., 182 F.3d 157, 160 (2d Cir.1999). At the outset we note that Cody’s retaliation claim brought pursuant to Title VTI fails as a matter of law because although Title VII protects an employee from retaliation resulting from a complaint of discrimination based on “race, color, religion, sex, or national origin,” 42 U.S.C. § 2000e-2, it does not protect an employee on the basis of disability, see 42 U.S.C. § 2000c-3 (prohibiting an employee from “discriminating against any of his employees ... because he has made a change, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this [subchapter]”).
“The ADA prohibits discrimination against a ‘qualified individual with a disability because of the disability’ in the ‘terms, conditions, and privileges of employment.’ ” Capobianco v. City of New York, 422 F.3d 47, 56 (2d Cir.2005). At the time of the actions under review and the district court decision, “disability” was defined as: “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2). (2008). The district court found Cody had impairments — osteoarthritis and generalized anxiety disorder — but concluded that Cody failed to produce evidence that her impairments imposed a substantial limitation on major life activities. On appeal, Cody challenges only the district court’s determination that she failed to offer sufficient evidence that she was regarded as having an impairment *719that substantially limited her ability to perform major life activities.
Cody failed to present sufficient evidence that Nassau County regarded her as having “an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.” Toyota Motor Mfg., Kentucky, Inc., v. Williams, 534 U.S. 184, 198, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002).
Judge Boyle properly dismissed Cody’s federal retaliation claim because she did not know sufficient temporal proximity between filing her NYSDHR complaint and the two termination notices. The district court properly held that Cody failed to offer proof from which a reasonable trier of fact could find a causal connection between Cody’s protected activity and any adverse employment action. The first complaint was filed August 21, 2001, but her first termination occurred more than a year later on September 12, 2002. She filed another complaint on October 8, 2002 and was not terminated again until March 6, 2003, approximately five months later. Cody alleges other adverse employment actions, i.e., (1) falsely accusing Cody of being absent without authorization, (2) threatening her with future counseling notices and disciplinary actions, (3) writing her up for leaving work early, (4) placing her on a medical review list, (5) issuing her a counseling notice while she was on leave, and (6) engaging in a pattern of conduct that created a hostile working environment including altercations, but as ably set forth by the district court, these are not adverse employment actions for purposes of a retaliation claim. Judge Boyle properly declined to address plaintiffs claim that assigning her to the night shift after she requested not to be so assigned was an adverse employment action because Cody was notified of the transfer to the night shift before she requested not be so assigned.
While the district court found that Nassau County’s timely receipt of Cody’s New York State Department of Human Rights complaints was insufficient to satisfy the notice requirements of New York General Municipal Law § 50-e, we need not reach the issue. Even assuming that Cody satisfied the notice requirements of § 50-e, Nassau County is entitled to summary judgment on Cody’s state law claims. As for Cody’s New York Executive Law § 296 retaliation claim, that claim fails for the same reasons as Cody’s ADA retaliation claim. See Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir.2002) (“NYHRL contain[s] similar provisions against retaliation and [is] governed in this respect by the same standards as the ADA.”).
Aside from the broader scope of covered disabilities under New York Executive Law § 296, Cody’s state law reasonable accommodation claim is “governed by the same legal standards as federal ADA claims.” Rodal v. Anesthesia Group of Onondaga, P.C., 369 F.3d 113, 117 n. 1 (2d Cir.2004). Nassau County is entitled to summary judgment because Cody has failed to adduce sufficient evidence to raise a material issue of fact as to whether her requested accommodation, i.e., transfer from the night shift at the Computer Center to the day shift, was reasonable. See Stone v. City of Mount Vernon, 118 F.3d 92, 96-97 (2d Cir.1997) (stating that a “plaintiff can establish a prima facie case under [the ADA, and in turn, § 296,] by showing ... (3) that with reasonable accommodation, he could perform the essential functions of the position sought, and (4) that the employer has refused to make such accommodations”). In particular, Cody has not produced sufficient evidence that her requested accommodation “facially achieves a rough proportionality be*720tween costs and benefits.” Id. at 98-99. The record indicates that the costs of transferring Cody would be substantial. Cody does not contest that, given Nassau Community College’s sudden loss of two of its five computer operators, transferring her to the day shift would unnecessarily disrupt Rich Godeck’s schedule — and require his transfer to the night shift — and place Cody in close quarters with Kathy Flick, which previously resulted in Cody’s request for a transfer due to her inability to get along with Flick. Cody’s showing that her requested transfer would yield disability-related benefits, i.e., that the day shift would allegedly involve less physical strain and a more secure work environment, is too weak to raise a material issue in light of these undisputed costs.
As Cody conceded both in the supplemental briefing and at oral argument, it is unlikely that the ADA Amendments Act of 2008 (“Act”) applies to conduct that occurred before the Act’s effective date of January 1, 2009. We need not decide the retroactivity issue, however, as Cody waived the issue by failing to raise it in her original brief. Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.1998). Finally, as we find Cody’s ADA claim lacks merit, we need not reach the question of whether she complied with New York State’s notice of claim requirements.
We have considered all remaining claims and find them to be without merit.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471819/ | SUMMARY ORDER
Petitioner Mubera Duka petitions for review of a decision of the Board of Immigration Appeals (“BIA”) dated September 24, 2008, vacating the grant of asylum by Immigration Judge (“IJ”) Brigitte Lafor-est and ordering Duka removed from the United States. In re Mubera Duka, No. A95 148 756 (B.I.A. Sept. 24, 2008), rev’g No. A95 148 756 (Immig. Ct. N.Y. City Nov. 19, 2002). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA vacates the decision of the IJ, we review only the decision of the BIA. See Alibasic v. Mukasey, 547 F.3d 78, 84 (2d Cir.2008). We review the BIA’s factual findings under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B). We review questions of law, and the application of law to undisputed fact, de novo. See Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). The BIA reviews de novo questions of law decided by the IJ. 8 C.F.R. § 1003.1(d)(3)(H); see also In re A-S-B- 24 I. & N. Dec. 493, 496-97 (B.I.A.2008). Whether the facts found by the IJ are sufficient to establish that a petitioner has a well-founded fear of persecution upon return to her native country is a legal determination. In re A-S-B-, 24 I. & N. Dec. at 497.
Duka is an ethnic Albanian citizen of the Republic of Macedonia. In order to establish a well-founded fear of persecution a petitioner must demonstrate either (1) a reasonable possibility of persecution against herself as an individual or (2) a pattern or practice of persecution against persons in a group to which she belongs. See 8 C.F.R. § 208.13(b)(2); Jian Hui Shao v. Mukasey, 546 F.3d 138, 150 n. 6 (2d Cir.2008). In vacating the order of the IJ granting Duka asylum, the BIA determined that she had not demonstrated a “pattern or practice” of persecution against ethnic Albanians in Macedonia. It is not clear from the record, however, that the IJ undertook a “pattern or practice” analysis in assessing Duka’s asylum claim. See Mufied v. Mukasey, 508 F.3d 88, 91 (2d Cir.2007) (“We decline the government’s invitation to assume that the IJ made findings on the existence of a pattern or practice sub silentio merely because she *722considered evidence relevant to that question for another purpose.”). As Duka was therefore not made aware of the importance of directing the BIA’s attention to specific facts establishing a pattern or practice of persecution against ethnic Albanians in Macedonia, she should be given the opportunity to fully brief this issue before the BIA.
For the foregoing reasons, the petition for review is GRANTED, the order of the BIA is VACATED, and the case is REMANDED to the BIA for further proceedings consistent with this opinion. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471823/ | OPINION
PER CURIAM.
Appellant Shemtov Michtavi seeks review of the order dismissing his second *728amended complaint with prejudice. Because the appeal does not present a substantial question, we will summarily affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
I.
Michtavi, an Israeli citizen, is a federal prisoner currently serving a twenty-year sentence at the Low Security Correctional Institution at Allenwood in White Deer, Pennsylvania (“LSCI-Allenwood”). In April 2007, Michtavi filed a pro se civil action against numerous named and unnamed defendants concerning his incarceration at LSCI-Allenwood and a previous incarceration at the Federal Detention Center in Miami, Florida. He purported to bring claims under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2401 et seq., the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq., Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and 42 U.S.C. §§ 1983, 1985, 1986, and 1988.
In May 2007, the District Court concluded that it lacked personal jurisdiction over the Florida defendants and dismissed Mi-chtavi’s claims against them.1 Because Michtavi also agreed to voluntary dismissal of fifty unnamed “John Doe” defendants, the District Court dismissed without prejudice all of Michtavi’s claims except those against five current and former LSCI-Allenwood employees: Miner, Ba-bón, McArdle, Sheets, and Nevil. Noting that the original complaint had focused primarily on the Florida claims, the District Court directed Michtavi to file an amended complaint limited to his claims against the LSCI-Allenwood officials.
Michtavi complied with the District Court’s order. In his amended complaint, Michtavi alleged that several inmates at LSCI-Allenwood devised elaborate schemes to steal his legal documents and money and to frame him for wrongdoing so they could negotiate lesser sentences for themselves. Michtavi claimed that the prison officials should have prevented the inmate plots, and that they failed to respond adequately when Michtavi reported them.2 Michtavi also claimed that the officials falsely accused Michtavi of involvement in “some sort of wrongdoing” and conspired to “cover up” the inmate plots. The prison officials’ actions with respect to these inmate plots allegedly caused Mi-chtavi to suffer “mental and emotional distress” resulting in the need to take the prescription medication Prozac. Michtavi sought injunctive relief and compensatory and punitive damages of moi'e than thirty million dollars.
Because Michtavi had permission to proceed in forma pauperis (“IFP”), the District Court reviewed the first amended complaint under the Prison Litigation Reform Act of 1995 (“PLRA”), 28 U.S.C. § 1915. The District Court concluded that Michtavi raised only a bare and conclusory allegation of “some sort of agreement” among the officials, which was insufficient *729to state a claim for civil conspiracy. The District Court also concluded that Miehtavi failed to allege the discriminatory animus necessary for a conspiracy claim under 42 U.S.C. § 1985(3), or the predicate racketeering acts and injury to business or property necessary for a civil RICO claim under 18 U.S.C. § 1962(c). In addition, the District Court found that Miehtavi failed to allege any personal involvement by defendants Miner and Babón. Finally, the District Court concluded that Miehtavi did not raise allegations of cruel and unusual punishment rising to the level of an Eighth Amendment violation. Accordingly, the District dismissed all of Michtavi’s claims except one; a claim under the FTCA against the United States, in which Miehtavi alleged that the prison officials’ failure to adequately investigate the inmate plots caused him to suffer emotional distress requiring him to take Prozac.
The Government moved to dismiss the remaining FTCA claim, arguing that the District Court lacked jurisdiction because Miehtavi failed to exhaust administrative remedies and that Miehtavi failed to state a claim upon which relief could be granted; The District Court granted the motion on the grounds that it lacked subject matter jurisdiction. See 28 U.S.C. § 2675(a) (FTCA administrative remedy exhaustion requirement); see also 42 U.S.C. § 1997e(a) (PLRA administrative remedy exhaustion requirement). Specifically, because Miehtavi filed his complaint in District Court before he received a final administrative decision from the prison, he violated the strict requirement under the FTCA that exhaustion must be complete prior to instituting a civil action. See McNeil v. United States, 508 U.S. 106, 112-13, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993). Recognizing that the defect could be cured, the District Court permitted Michtavi leave to amend.
Accordingly, Miehtavi filed a second amended complaint limited to his FTCA claim, in which he alleged, inter alia, that he properly exhausted his administrative remedies. His other supporting allegations largely remained unchanged. The Government once again moved to dismiss, arguing, inter alia, that Miehtavi did not state a claim upon which relief can be granted. On March 4, 2009, 2009 WL 578535, the District Court granted the Government’s motion and dismissed the second amended complaint with prejudice. Miehtavi filed a timely appeal. He has been granted IFP status and has moved for appointment of counsel.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Because Miehtavi is proceeding IFP, we must dismiss the appeal under 28 U.S.C. § 1915(e)(2)(B) if it is legally frivolous. We may summarily affirm if the appeal presents no substantial question. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
We exercise plenary review of the District Court’s order. See Angstadt v. Midd-West Sch. Dist., 377 F.3d 338, 342 (3d Cir.2004). Because we are reviewing the dismissal of his claims, we take Mi-chtavi’s allegations as true. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Estelle v. Gamble, 429 U.S. 97, 99, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Miehtavi was required to allege sufficient factual matter to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009), citing Twombly, 550 U.S. at 570, 127 S.Ct. 1955.
A.
The FTCA provides that a prisoner such as Miehtavi may not recover compensatory damages for exclusively mental or *730emotional injuries without also showing an accompanying physical injury. 28 U.S.C. § 1346(b)(2) (“No person convicted of a felony who is incarcerated ... while serving a sentence may bring a civil action against the United States ... for mental or emotional injury suffered while in custody without a prior showing of physical injury.”). The PLRA similarly restricts a prisoner’s ability to recover compensatory damages for solely mental or emotional injuries. 42 U.S.C. § 1997e(e) (“No federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.”); see also Mitchell v. Horn, 318 F.3d 523, 533 (3d Cir.2003). Accordingly, Michtavi could not proceed in the absence of some “prior showing of physical injury.” See 28 U.S.C. § 1346(b)(2); 42 U.S.C. § 1997e(e).
Michtavi claimed injury in the form of “pain and suffering” and “mental and emotional distress.” Although he amended his complaint twice, Michtavi never alleged a physical injury or symptom of any kind.3 Even affording Michtavi’s pleadings the liberal construction to which they are entitled, see Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir.2003), we conclude that Michta-vi did not state a claim upon which relief can be granted and dismissal was appropriate.4 See Fed.R.Civ.P. 12(b)(6).
B.
Although not listed as separate counts in the second amended complaint, Michtavi referred vaguely to the Eighth Amendment and to the existence of an alleged conspiracy. Originally, in his first amended complaint, Michtavi attempted to raise Eighth Amendment and conspiracy claims. The District Court dismissed them, concluding that Michtavi failed to allege facts sufficient to sustain either claim. The District Court construed Michtavi’s references in the second amended complaint as a request to reconsider the dismissal, and held that Michtavi did not present grounds for reconsideration.
We review the District Court’s denial of reconsideration for abuse of discretion. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985). We exercise plenary review over the initial dismissal of Michtavi’s Eighth Amendment and conspiracy claims. See Fed. Kemper Ins. Co. v. Rauscher, 807 F.2d 345, 348 (3d Cir.1986).
Under the Eighth Amendment, “[o]nly ‘unnecessary and wanton infliction of pain’ or ‘deliberate indifference to the serious medical needs’ of prisoners are sufficiently egregious to rise to the level of a constitutional violation.” White v. Napoleon, 897 F.2d 103, 108-09 (3d Cir.1990) (quoting Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). “The test of ‘cruel and unusual’ is a strict one which considers whether the infliction grossly exceeds the legitimate need for force and violates the standards of contemporary society.” Rhodes v. Robinson, 612 F.2d 766, 771 (3d Cir.1979). We have reviewed Michtavi’s pleadings to consider *731whether, at any time during the proceedings, he raised allegations sufficient to sustain a claim that he suffered cruel and unusual punishment in violation of the Constitution. We conclude that he did not.
Miehtavi based his civil conspiracy claim upon the conclusory allegation that prison officials agreed to act against him. Without more, the bare allegation of an agreement is insufficient to sustain a conspiracy claim. See Abbott v. Latshaw, 164 F.3d 141, 148 (3d Cir.1998) (conclusory allegations of concerted action are insufficient for a § 1983 conspiracy claim); Rose v. Bartle, 871 F.2d 331, 366 (3d Cir.1989) (allegations supporting a conspiracy claim under civil RICO must be sufficiently specific). Dismissal was therefore appropriate.
The second amended complaint failed to include any new allegation to support Mi-chtavi’s claims. As a result, the District Court did not abuse its discretion in deciding that Michtavi’s vague references to the Eighth Amendment and to the existence of a conspiracy did not provide a basis for reconsideration of the dismissal of those claims.
III.
We have reviewed the record in this matter and conclude that there is no substantial question to be presented on appeal. Accordingly, we will summarily affirm the judgment of the District Court. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6. We deny the motion for appointment of counsel as moot.
. The District Court stated that the dismissal was without prejudice to re-filing in the proper venue (i.e., the United States District Court for the Southern District of Florida). However, the District Court declined to transfer the entire matter because it concluded that the Middle District of Pennsylvania was the proper venue for Michtavi's claims against the LSCI-Allenwood officials.
. Although Michtavi stated that he complained about the inmate plots and did not receive a satisfactory response, Michtavi also alleged that prison officials searched for and eventually returned Michtavi's legal documents to him, that the inmate who stole the legal papers was placed into solitary confinement, and that the inmate who attempted to frame Michtavi was transferred to a different prison.
. Although Michtavi alleged that his mental injuries require medication (i.e., Prozac), the District Court concluded that the need to take medication does not necessarily lead to the conclusion that the injuries are physical in nature. We agree.
. In addition, to the extent Michtavi purported to seek punitive damages, recovery for alleged loss of property, and injunctive relief, such relief is not available under the FTCA. See 28 U.S.C. §§ 2674 (no punitive damages); Molzof v. United States, 502 U.S. 301, 312, 112 S.Ct. 711, 116 L.Ed.2d 731 (1992) (same); 2680(c) (no property claims, except in certain circumstances not applicable in Michtavi’s case); Hatahley v. United States, 351 U.S. 173, 182, 76 S.Ct. 745, 100 L.Ed. 1065 (1956) (district court does not possess power under FTCA to enjoin United States). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471824/ | OPINION
PER CURIAM.
Enoch Bey appeals pro se from the District Court’s dismissal of his removal motion and subsequent denial of his motions for an extension time and leave to file an amended notice of removal. Because Bey presents no substantial question on appeal, we will affirm.
In January 2009, Bey (under the alias King Elber Tyrone I) filed a motion for leave to proceed in forma pauperis and an unsigned notice of removal in the District Court. The court granted the motion for IFP and dismissed the action for lack of subject matter jurisdiction because Bey was attempting to remove a state criminal action to federal court.
Bey then filed a motion for extended time for leave to file an amended notice of removal in which he proclaimed his nationality as a “Moorish American” and cited to the Thirteenth Amendment as a basis for his nationality. He also claimed that he was a party to the Treaty of Peace and Friendship of 1787 between Morocco and the United States of America and that “my status as a sovereign prevents this court from being able to establish jurisdiction over me.” He requested that the District Court remove his case from the “lower court” — presumably the state court — and dismiss the action with prejudice for lack of jurisdiction. The District Court denied the motion, noting that the matter was previously dismissed for lack of jurisdiction.1 Bey timely appealed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We may summarily affirm if it clearly appears that no substantial question is presented. See L.A.R. 27.4, I.O.P. 10.6. Although Bey’s notice of removal does not appear on the District Court’s docket, a later filing reveals that Bey “respectfully demand[s] removal of the matter under the caption COMMONWEALTH OF PENNSYLVANIA v. King Elbert Tyrone I, docket number MC-51CR-0061436-2008.” A search of this docket number confirms that it refers to a state criminal proceeding against Elbert Ferguson, an alias of Bey. Bey has not shown why he cannot be prosecuted in state court or otherwise demonstrated an independent basis for removing his matter to federal court. See, e.g. 28 U.S.C. §§ 1442, 1446. Accordingly, we will affirm the judgment of the District Court.
. On the same day he filed his appeal, Bey filed another motion for an extension of time to file an amended notice of removal, which the District Court denied less than a week later for the same reasons it denied the previous motion for extension of time. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471826/ | OPINION
PER CURIAM.
Appellant Lamar McCrory, proceeding pro se, appeals from the District Court’s denial of his Petition for Relief Pursuant to the Writ of Audita Querela, 28 U.S.C. § 1651. For the reasons that follow, we will summarily affirm the order of the District Court.
In 1996, McCrory was found guilty of conspiracy to commit armed bank robbery, armed bank robbery, and carrying and using a firearm during a crime of violence. After his conviction and sentence were affirmed on appeal, he filed a 28 U.S.C. § 2255 motion, a Rule 60(b) motion to vacate the judgment of conviction, a motion for an evidentiary hearing, and two applications to file a second or successive 28 U.S.C. § 2255 motion, all of which were denied. On April 24, 2008, McCrory filed a document in the United States District Court for the Eastern District of Pennsylvania entitled “Petition for Relief Pursuant to the Writ of Audita Querela, 28 U.S.C. § 1651.” In it, he averred that he had recently discovered, through a conversation with his trial counsel, that before the *734trial, the Government had made him a plea offer which counsel faded to communicate to him and which he would have taken if given the opportunity, and that one of the prosecution’s key witnesses was hypnotized in preparation for her testimony at trial. On December 24, 2008, 2008 WL 5381358, the District Court entered a memorandum and order denying McCro-ry’s motion. McCrory now appeals.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.1 The District Court denied McCrory’s petition for a writ of audita querela on the ground that to permit it to proceed would be to circumvent the intent of Congress in enacting AEDPA. In United States v. Valdez-Pacheco, 237 F.3d 1077 (9th Cir.2001), the United States Court of Appeals for the Ninth Circuit held that while the common law writ of audita querela can be used in criminal cases to the extent that it “fill[s] ‘gaps’ in the current systems of postconviction relief,” a federal prisoner “may not circumvent valid congressional limitations on collateral attacks by asserting that those very limitations create a gap in the postconviction remedies that must be filled by the common law writs.” Id. at 1079-80; see also United States v. Holt, 417 F.3d 1172, 1175 (11th Cir.2005) (writ of audita querela unavailable where relief is cognizable under § 2255). McCrory’s inability to bring a second § 2255 motion at the present time does not render § 2255 inadequate or ineffective to challenge his eonviction. Cf. Cradle v. United States ex rel. Miner, 290 F.3d 536, 539 (3d Cir.2002) (per curiam) (explaining that “Section 2255 is not inadequate or ineffective merely because the sentencing court does not grant relief, the one-year statute of limitations has expired, or the petitioner is unable to meet the stringent gatekeeping requirements of the amended § 2255”); United States v. Baptiste, 223 F.3d 188, 189-90 (3d Cir.2000) (per curiam) (holding that “the procedural barriers erected by AEDPA are not sufficient to enable a petitioner to resort to coram nobis merely because he/ she is unable to meet AEDPA’s gatekeep-ing requirements”). Based on the foregoing, we conclude that McCrory may not use the writ of audita querela to circumvent AEDPA’s gatekeeping requirements.
Because McCrory’s appeal presents no substantial question, we will summarily affirm the order of the District Court denying relief. See 3d Cir. LAR 27.4; I.O.P. 10.6.
. Although we originally indicated that this appeal might be dismissed as untimely, we conclude that it will not. McCrory filed his notice of appeal on March 10, 2009. On March 12, 2009, he filed a motion for an extension of time in which to file his notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(5). On March 18, 2009, the District Court granted his request for an extension of time. This extended the period in which to file his appeal from February 23, 2009 to either March 23, 2009 or April 1, 2009. See Fed. R.App. P. 4(a)(1)(B); 4(a)(5). Because McCrory's notice of appeal was filed with this time frame, we have jurisdiction to consider his appeal. See Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 2366, 168 L.Ed.2d 96 (2007) (holding that the timely filing of a notice of appeal is a jurisdictional requirement). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471828/ | OPINION
PER CURIAM.
Lawrence Wilder appeals from an order of the District Court denying his “motion to reopen” pursuant to Federal Rule of Civil Procedure 60(b), and denying his motion for appointment of counsel as moot.
Wilder filed the Rule 60(b) motion on March 5, 2009, seeking reconsideration of a June 11, 2002 order dismissing his civil rights complaint with prejudice. According to Wilder, he has “new evidence to [sic] the defendants’ guilt.” We agree with the District Court that Wilder’s motion is untimely because it was filed almost seven years after the challenged order was entered. See Fed.R.Civ.P. 60(c)(1) (“A *736motion under Rule 60(b) must be made within a reasonable time — and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding”); Moolenaar v. Gov’t of V.I., 822 F.2d 1342, 1348 (3d Cir.1987) (two years not a “reasonable time” for 60(b) purposes); Martinez-McBean v. Gov’t of V.I., 562 F.2d 908, 913 n. 7 (3d Cir.1977) (expressing “serious doubts” that two and one half year delay in filing Rule 60(b) motion would comply with “reasonable time” requirement).1
There being no substantial question presented by Wilder’s appeal, we will summarily affirm the District Court’s order denying both his Rule 60(b) motion and his motion for appointment of counsel. See LAE 27.4; I.O.P. 10.6.
. Even if Wilder's motion were timely, he would be unable to bear the "heavy burden" for demonstrating entitlement to Rule 60(b) relief. Bohus v. Beloff, 950 F.2d 919, 930 (3d Cir.1991). Specifically, the alleged "newly discovered evidence" (an EEOC press release describing a settlement in an unrelated matter) is not "material” to Wilder’s case. Id. Nor would it "probably have changed the outcome of the trial.” Id. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471830/ | OPINION
PER CURIAM.
Francis A. Muolo, a federal prisoner, appeals from an order of the United States District Court for the Western District of Pennsylvania denying his habeas corpus petition filed under 28 U.S.C. § 2241, in which he claims that the Federal Bureau of Prisons (“BOP”) wrongfully denied him eligibility for early release despite his participation in a substance abuse treatment program. More specifically, Muolo claims that the regulation the BOP applied to deny his eligibility for early release, 28 C.F.R. § 550.58(a)(l)(vi)(B) (2000), is invalid in light of two decisions from the United States Court of Appeals for the Ninth Circuit. We will summarily affirm because Muolo’s appeal presents no substantial question. See 3d Cir. L.A.R. 27.4 and 3d Cir. I.O.P. 10.6.
I.
A.
Under 18 U.S.C. § 3621(e)(2)(B), the BOP may reduce the term of a federal prisoner convicted of a “nonviolent offense” if the prisoner successfully completes a substance abuse treatment program. Congress did not define the statutory term “nonviolent offense.” In 1995, the BOP published a regulation, 28 C.F.R. § 550.58, that implemented the statute’s “nonviolent offense” criteria by denying early release to inmates whose “current offense is determined to be a crime of violence as defined in 18 U.S.C. § 924(c)(3),” as well as to inmates who had a prior state or federal conviction for homicide, forcible rape, robbery, or aggravated assault. Drug Abuse Treatment Programs: Early Release Consideration, 60 Fed.Reg. 27692, 27695 (May 25, 1995). The BOP also issued a Program Statement further defining “crimes of violence” to include drug trafficking offenses under 21 U.S.C. § § 841 and 846 if the offender received a two-level sentence enhancement for possessing a dangerous weapon during the commission of the offense. U.S. Dep’t of Justice, Fed. Bureau of Prisons, Program Statement No. 5162.02: Definition of Term “Crimes of Violence,” § 9 (April 23, 1996). The BOP explained that it considered a drug offense that included the weapons-possession sentencing enhancement to be a “crime of violence” because “possession of a dangerous weapon during the commission of a drug offense poses a substantial risk that force may be used against persons or property.” Id.
*738The Courts of Appeals then divided over the validity of the BOP’s definition of “crime of violence.” The agency’s regulation, 28 C.F.R. § 550.58, relied upon the statutory definition of “crime of violence” in 18 U.S.C. § 924(c), but its Program Statement extended that definition to include drug offenses under 21 U.S.C. §§ 841 and 846 with sentencing enhancements for possession of a dangerous weapon. And those offenses had generally not been regarded by federal courts to be crimes of violence within the meaning of 18 U.S.C. § 924(c). Compare, e.g., Pelissero v. Thompson, 170 F.3d 442, 447 (4th Cir.1999) (upholding the regulation and Program Statement), with Roussos v. Menifee, 122 F.3d 159, 164 (3d Cir.1997) (finding the Program Statement invalid). This split among the Circuits caused the BOP to publish an interim regulation in 1997 that attempted to avoid the circuit split and allow uniform application of its denial criteria throughout its institutions. The BOP removed the language from 28 C.F.R. § 550.58 that referenced the statutory definition of crimes of violence. It then made categorical denials of early release “[a]s an exercise of the discretion vested in the Director” of the BOP. Drug Abuse Treatment and Intensive Confinement Center Programs: Early Release Consideration, 62 Fed.Reg. 53690, 53691 (Oct. 15, 1997). The 1997 regulation continued to deny early release to prisoners convicted of drug offenses with sentencing enhancements for the possession of a firearm: “The following categories of inmates are not eligible for early release ... [i]nmates whose current offense is a felony ... [t]hat involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives.” 28 C.F.R. § 550.58(a)(1)(vi)(B) (1997).
In 2000, the interim rule became final without change. Drug Abuse Treatment and Intensive Confinement Center Programs: Early Release Consideration, 65 Fed.Reg. 80745 (Dec. 22, 2000). As it had in its 1997 Federal Register notice, the BOP once again explained that the regulation was revised to avoid the ramifications of the circuit split: “The first interim rule attempted to define the term ‘crime of violence’ pursuant to 18 U.S.C. § 924(c)(3). Due to varying interpretations of the regulation and caselaw, the Bureau could not apply the regulation in a uniform and consistent manner. The third interim rule sought to resolve this complication.” Id. at 80747.
Between the publication of the 1997 interim regulation and the 2000 final regulation, a circuit split again developed, this time on whether the BOP had the discretion to make the categorical denial of early release set forth in 28 C.F.R. § 550.58(a)(1)(vi)(B). The Supreme Court resolved the issue in Lopez v. Davis, 531 U.S. 230, 121 S.Ct. 714, 148 L.Ed.2d 635 (2001), in which the Court held that 18 U.S.C. § 3621(e)(2)(B) grants the BOP the discretion to decide whether to reduce a prisoner’s sentence. 531 U.S. at 241, 121 S.Ct. 714. The Court further held that the regulation denying prisoners convicted of a felony that involved possession of a dangerous weapon is a permissible exercise of that discretion:
Having decided that the Bureau may categorically exclude prisoners based on their preconviction conduct, we further hold that the regulation excluding Lopez [28 C.F.R. § 550.58(a)(l)(vi)(B) ] is permissible. The Bureau reasonably concluded that an inmates’s prior involvement with firearms, in connection with the commission of a felony, suggests his readiness to resort to life-endangering violence and therefore appropriately determines the early release decision.
Id. at 244, 121 S.Ct. 714.
After Lopez, the Ninth Circuit issued two opinions holding that the 1997 interim regulation and the 2000 final regulation *739were invalid. In Paulsen v. Daniels, 413 F.3d 999 (9th Cir.2005), the Ninth Circuit held that the 1997 interim regulation was invalid because it became effective immediately and thus violated the notice and comment requirements of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551 et seq. In Arrington v. Daniels, 516 F.3d 1106 (9th Cir.2008), the Ninth Circuit held that the 2000 final regulation was invalid under section 706(2)(A) of the APA, which requires a reviewing court to set aside a final agency action if it is “arbitrary, capri‘cious, an abuse of discretion, or otherwise not in accordance with law,” because the BOP did not give a rationale for its action. 5 U.S.C. § 706(2)(A). Although the BOP gave two reasons for its decision to categorically deny early release to prisoners convicted of felonies involving the possession of firearms — public safety and a desire to be able to uniformly apply its regulation despite the circuit split over the 1995 regulation — the Ninth Circuit rejected both. It dismissed the public safety reason because it was not in the administrative record, but only in the agency’s brief to the Supreme Court. Id. at 1113. Therefore, the court rejected the public safety reason as the “post hoc rationale” of appellate counsel. The Arrington court also rejected the uniformity rationale because it did not explain why the agency chose to achieve uniformity through a rule of exclusion when other approaches could also achieve that goal. Id. at 1114.
The BOP recently published another final regulation, 28 C.F.R. § 550.55 (effective March 16, 2009), which continues to categorically deny early release to prisoners convicted of a felony that involved the possession of a dangerous weapon. Drug Abuse Treatment Program: Subpart Revision and Clarification and Eligibility of D.C.Code Felony Offenders for Early Release Consideration, 74 Fed.Reg. 1892 (Jan. 14, 2009); 28 C.F.R. § 550.55(b)(5)(h). In the Federal Register notice, the BOP states that the Director of the Bureau is exercising his discretion to deny early release to such prisoners because “there is a significant potential for violence from criminals who carry, possess or use firearms while engaged in felonious activity. Thus, in the interest of public safety, these inmates should not be released months in advance of completing their sentences.” Id. at 1895. The BOP also reiterated the rationale the agency presented to the Supreme Court — using a quotation from the Lopez decision — and stated that the BOP “adopts this reasoning.” Id.
B.
Turning to the present appeal, Muolo is serving a fifty-seven-month sentence at the Federal Correctional Institution in McKe-an, Pennsylvania, for conspiracy to possess with intent to distribute cocaine and possession with intent to distribute a controlled substance, in violation of 21 U.S.C. § § 846 and 841(a)(1). His projected release date, assuming the application of good time credit, is March 2, 2010. In December 2007, staff at FCI McKean determined that Muolo is not eligible for early release despite participation in a substance abuse treatment program because 28 C.F.R. § 550.58(a)(l)(vi)(B) applies to his situation: Muolo received a two-level sentence enhancement because he possessed a dangerous weapon at the time of his arrest. Muolo’s administrative appeals of this decision were denied. He then filed a federal habeas petition claiming the BOP regulation was invalid under Paulsen and Arrington. The parties consented to having the matter decided by a magistrate judge pursuant to 28 U.S.C. § 636(c), who denied the petition on January 9, 2009, finding no merit in Muolo’s claims. Muolo v. Quintana, 593 F.Supp.2d 776, 787 (W.D.Pa.2009). Muolo timely appealed to this Court and the government filed a *740motion seeking summary affirmance of the order of the District Court.
II.
Muolo first claims that he is entitled to habeas relief on the basis of the Ninth Circuit’s decision in Paulsen, which held that the 1997 interim version of 28 U.S.C. § 550.58(a)(1)(vi)(B) was invalid because the BOP did not adhere to the notice and comment requirements of the APA. As the District Court explained, this claim lacks merit for the simple reason that Muolo was not denied eligibility for early release under the 1997 interim regulation. Rather, he was denied under the 2000 regulation that was finalized after a notice and comment period. Thus, Paulsen does not apply to Muolo’s situation and cannot provide a basis for habeas relief.
Muolo’s second claim is based solely on the Arrington decision, which held that the 2000 final regulation was invalid under section 706(2)(A) of the APA because the BOP failed to provide a sufficient reason in the administrative record for the regulation. To date, no court outside of the Ninth Circuit has followed Arrington. On the contrary, the decision has been vigorously criticized by many district courts, as well the Eighth Circuit, the only Court of Appeals to have yet addressed the Arrington decision.
In Gatewood v. Outlaw, the Eighth Circuit rejected Arrington as “contrary to the Supreme Court’s decision in Lopez ” and held that the BOP’s uniformity and public safety rationales provided sufficient justification for the 2000 regulation. 560 F.3d 843, 846 (8th Cir.2009). According to the Eighth Circuit, the Arrington court “erred when it disregarded the BOP’s public safety rationale” simply because that rationale was not expressed in the Federal Register notice for the 2000 final regulation. Id. at 847. Public safety was the contemporaneous rationale for the regulation, as recognized by the Supreme Court in Lopez, and was not merely the post hoc rationalization of appellate counsel. Id. at 848. Moreover, the Eighth Circuit noted that the BOP has consistently maintained a public safety basis for the regulation in Program Statements. Id. Finally, the court found that the BOP had strong substantive and administrative interests in applying its policy decisions uniformly throughout its institutions, providing an additional justification for the regulation. Id. at 848-49. The District Court in the present case came to this conclusion, Muolo, 593 F.Supp.2d at 786-87, as have many other district courts. See, e.g., Hicks v. Fed. Bureau of Prisons, 603 F.Supp.2d 835, 840 (D.S.C.2009); Ables v. Eichenlaub, No. 08-204, 2009 WL 722287, *6-*7, 2009 U.S. Dist. LEXIS 25103 at *17-*18 (N.D.Fla., Mar. 18, 2009) (collecting cases); Minotti v. Whitehead, 584 F.Supp.2d 750, 764-65 (D.Md.2008). We likewise do not find the reasoning of Arrington persuasive.
The scope of judicial review of agency rulemaking under the APA’s “arbitrary and capricious” provision, 5 U.S.C. § 706, is “narrow, and a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). A regulation may be found arbitrary and capricious “if the agency relied on facts other than those intended by Congress, did not consider ‘an important aspect’ of the issue confronting the agency, provided an explanation for its decision which ‘runs counter to the evidence before the agency,’ or is entirely implausible.” Rite Aid of Pennsylvania, Inc., v. Houstoun, 171 F.3d 842, 853 (3d Cir.1999) (quoting State Farm, 463 U.S. at 43, 103 S.Ct. 2856). A reviewing court “may not supply a reasoned basis for the agency’s action that the agency itself has not given,” but may “uphold a decision *741of less than ideal clarity if the agency’s path may reasonably be discerned.” State Farm, 463 U.S. at 43, 103 S.Ct. 2856.
Here, we agree with the District Court and the Eighth Circuit that the BOP articulated a sufficient rationale for 28 C.F.R. § 550.58(a)(l)(vi)(B). Although the public safety rationale was not explicit in the Federal Register notices for the 1997 or 2000 regulations, it can “reasonably be discerned” from the regulatory history and attendant litigation. The BOP amended the regulation due to its inability to uniformly apply the 1995 version after a circuit split developed on its validity in light of the BOP’s Program Statements. The BOP referred to the circuit split in both its 1997 and 2000 Federal Register notices. See 62 Fed.Reg. 53690; 65 Fed. Reg. 80745, 80747. As the circuit court litigation focused on the BOP’s Program Statements and the BOP referred to that litigation in its notices regarding the regulations, it is both reasonable and appropriate to consider those Program Statements when discerning the agency’s rationale for the 1997 and 2000 regulations. See Gate-ivood, 560 F.3d at 847.
Protecting public safety is the express reason given in the Program Statements for the BOP’s decision to categorically deny early release to prisoners convicted of drug offenses with sentence enhancements for possession of a dangerous weapon: possession of a dangerous weapon during the commission of a drug offense “poses a serious potential risk that force may be used against persons or property.” U.S. Dep’t of Justice, Fed. Bureau of Prisons, Program Statement 5162.04: Categorization of Offenses, § 7(b) (Oct. 9, 1997); Program Statement 5162.02, § 9. Indeed, courts reviewing the validity of the 1995 regulation recognized that public safety was BOP’s rationale for its rule — well before the litigation of Lopez in the Supreme Court. See, e.g., Pelissero, 170 F.3d at 445 (quoting the district court’s conclusion that it is “entirely reasonable and certainly not arbitrary for the BOP to equate gun possession and drug dealing with violence, thus supporting its interpretation of not being a ‘nonviolent offense’ ”); Venegas v. Henman, 126 F.3d 760, 765 (5th Cir.1997) (the BOP’s “determination that a sufficient nexus exists between the offenses at issue and a substantial risk of violence is a valid exercise of discretion which this Court will not disturb”).
We also find it significant that the Supreme Court has upheld the reasonableness of the 1997 regulation and its public safety rationale: the BOP “reasonably concluded that an inmate’s prior involvement with firearms, in connection with the commission of a felony, suggests his readiness to resort to life-endangering violence.” Lopez, 531 U.S. at 244, 121 S.Ct. 714. The Arrington court discounted this aspect of Lopez, concluding that the Supreme Court did not “address whether the agency itself articulated” the public safety rationale because the Court cited counsel’s arguments rather than the administrative record. 516 F.3d at 1115-16. We, however, cannot so readily conclude that the Supreme Court failed to consider whether the public safety rationale was legitimate — i.e., whether it was the BOP’s contemporaneous rationale for the regulation and not merely an after-the-fact justification developed for the litigation — when the Court chose to evaluate the reasonableness of that rationale as part of determining the regulation’s validity. Cf. Gateiuood, 560 F.3d at 848 (noting that there “is simply no reason to suspect that public safety was not the actual basis” for the regulation given the BOP’s “primary public safety mission”).
Finally, the regulation facially manifests a concern for public safety because it also denies early release to prisoners who have *742a prior conviction for homicide, forcible rape, robbery, aggravated assault, or child sexual abuse; prisoners whose current offense is a felony that has an element of actual, attempted, or threatened use of physical force against a person or property; and prisoners whose current offense “by its nature or conduct” presents a serious potential risk of physical force against a person or property, or involves child sexual abuse offenses. 28 C.F.R. § 550.58(a)(l)(iv), (vi)(A), (C), (D). See Muolo, 593 F.Supp.2d at 787.
For these reasons, we agree with the District Court that 28 C.F.R. § 550.58(a)(l)(vi)(B) is not arbitrary and capricious within the meaning of section 706 of the APA. Accordingly, we will grant Appellees’ motion and will summarily affirm the District Court’s order denying Muolo’s habeas petition. We deny as moot Appellant’s motion for an order on Appellee’s motion. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471832/ | OPINION
ROTH, Circuit Judge.
John Mizic appeals the sentence he received for violating 18 U.S.C. § 751(a) (escape), 18 U.S.C. § 1344 (bank fraud), and 18 U.S.C. § 1708 (possession of stolen mail). Mizic argues that the government breached its plea agreement with him by “undermining its recommendation for sentence reduction” and that the District Court’s sentence was unreasonable because it erred in applying the sentencing guidelines to his conduct. We assume the parties’ familiarity with the facts and the record of prior proceedings, which we refer to only as necessary to explain our decision. For the reasons given below, we will affirm the District Court’s judgment of sentence in this matter.1
Mizic’s argument that the government undermined its recommendation for sentencing reduction is wholly without merit. In the agreement, the parties stipulated to a 140-month sentence, with the potential for departure at the government’s recommendation upon its determination that Mizic had provided substantial assistance in uncovering the extent of his crimes and those of any others involved. The government requested a sixteen-month reduction. The District Court, however, within its discretion rejected this departure and we will not review this rejection. See U.S. v. Cooper, 437 F.3d 324, 332-33 (3d Cir.2006). Mizic then received a 140-month sentence, as prescribed in the plea agreement. Because the sentence imposed was -within the terms of the plea agreement, the government did not breach it.2
Mizic’s second argument, that his sentence was unreasonable because the District Court incorrectly calculated his sentence based on the guidelines, also fails. The plea agreement states that “pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, the government and the defendant stipulate and agree to the following regarding the defendant’s offense level, criminal history category, and sentence: The parties shall stipulate that the defendant’s sentence should be 140 months imprisonment....” An agreement entered under Rule 11(c)(1)(C) “binds the court once the court accepts the plea agreement.” Fed.R.Crim.P. 11(c)(1)(C); United States v. Bernard, 373 F.3d 339, 343 (3d Cir.2004). The District Court accepted the plea agreement; therefore, it was reasonable for the court to sentence Mizic in accordance with the agreement’s terms.
For the foregoing reasons, we will affirm the District Court’s judgment of sentence.
. We exercise plenary review over whether the government breached the terms of its plea agreement. United States v. Rivera, 357 F.3d 290, 293-94 (3d Cir.2004). Plenary review also applies to the district court’s interpretation of the Sentencing Guidelines; we review any factual findings for clear error. United States v. Grier, 475 F.3d 556, 570 (3d Cir.2007).
. Had it not requested a sixteen-month departure, the government could still have been in compliance with the agreement, which explicitly stated the government would determine whether Mizic's assistance was substantial. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471840/ | OPINION
SLOVITER, Circuit Judge.
Appellant Jonas Gillespie pled guilty in the United States District Court for the Western District of Pennsylvania to (1) conspiracy to distribute and possess with the intent to distribute cocaine base in violation of 21 U.S.C. § 846; (2) possession with the intent to distribute in excess of five grams of cocaine base in violation of 21 U.S.C. § 841(a)(1); (3) possession with the intent to distribute in excess of 500 grams of cocaine in violation of 21 U.S.C. §§ 841(a)(1); (4) use of and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1); and (5) felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The Court sentenced Gillespie to 322 months incarceration — 262 months for the drug trafficking and felon in possession of a firearm offenses, and sixty additional months for using and carrying a firearm in furtherance of the drug-trafficking crime. Six years later, the District Court vacated the consecutive sixty-month term resulting from Gillespie’s 18 U.S.C. § 924(c)(1) violation, thereby reducing Gillespie’s total sentence to 262 months. In arriving at Gillespie’s sentence, the District Court treated Gillespie as a “career offender” pursuant to U.S.S.G. § 4B1.1.1 In April 2008, Gillespie filed a *758pro se motion seeking a reduced sentence, which the District Court denied. We will affirm.2
I.
The District Court did not err in calculating Gillespie’s Guidelines sentence.3 Section 4B1.1, at the time of Gillespie’s sentencing and now, mandates that a career offender’s offense level be calculated in conjunction with the statutory maximum of the instant offense. In Gillespie’s case, this resulted in a base offense level of thirty-seven, which after a three-level reduction for acceptance of responsibility, led to a total offense level of thirty-four, and a criminal history of VI because of his career offender status. Under § 4B1.1, “if the offense level for a career offender ... is greater than the offense level otherwise applicable, the offense level from [the career offender subsection] shall apply.” U.S.S.G. § 4B1.1 (1993). Thus, because the offense level mandated by the career offender provision, thirty-four, was higher than that required for the offenses to which Gillespie pled guilty, his sentence was calculated in compliance with the career offender guideline.
In his appeal from the District Court’s denial of his motion for a reduction of his sentence, Gillespie relies on 18 U.S.C. § 3582(c)(2), which provides that a court may reduce a defendant’s sentence if the “defendant ... has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission....” He argues here, as he did in the District Court, that his sentence was based in part on the crack cocaine guidelines of U.S.S.G. § 2D 1.1, which were reduced in 2007 when the Sentencing Commission adopted Amendment 706. Amendment 706, later made retroactive by the Sentencing Commission, changed the drug quantity table in U.S.S.G. § 2D1.1 to decrease by two the base-offense level assigned to each threshold quantity of cocaine base. See U.S.S.G. § 2D1.1; U.S.S.GApp. C, Amend. 706 (Nov. 1, 2007).
II.
Notwithstanding the extensive statutory analyses in Gillespie’s brief, his sentence was not, as he avers, “based in part or at least to some extent influenced by,” the crack cocaine guidelines. Appellant’s Br. at 24. Gillespie’s argument is flawed because, as the District Court explained, his sentence was based entirely on the career offender provision. This court recently held in United States v. Mateo, 560 F.3d 152, 155 (3d Cir.2009), that a district court has no authority under 18 U.S.C. § 3582(c)(2) to reduce a career offender’s sentence pursuant to Amendment 706. Gillespie’s base offense level is 34 as mandated by the career offender provision, and unaffected by Amendment 706. Accordingly, 18 U.S.C. § 3582(c)(2) does not authorize a reduction in his sentence. To put it simply, Amendment 706 “ ‘provides no benefit to career offenders.’” Mateo, 560 F.3d at 155 (quoting United States v. Forman, 553 F.3d 585, 589 (7th Cir.2009)). Accord United States v. Caraballo, 552 F.3d 6, 11 (1st Cir.2008); United States v. Sharkey, 543 F.3d 1236, 1238-39 (10th Cir.*7592008); United States v. Moore, 541 F.3d 1323, 1327-28 (11th Cir.2008).
III.
For the above-stated reasons, we will affirm the District Court’s order denying Gillespie’s motion requesting reduction of sentence.
. Gillespie met the criteria for a career offender because he was 33 years old when he *758committed the offenses in this case; some of the felonies in this case were controlled substance offenses; and he had at least two prior felony convictions for controlled substance offenses and/or crimes of violence.
. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
. Gillespie was sentenced under the 1993 version of the U.S. Sentencing Guidelines Manual. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471842/ | OPINION
SMITH, Circuit Judge.
Appellant Dawud Bey pleaded guilty to one count of conspiracy to manufacture and distribute cocaine, in violation of 21 U.S.C. § 846. As part of his plea agreement, Bey stipulated that he distributed and agreed to distribute more than 3.5 kilograms but less than 5 kilograms of cocaine in furtherance of the conspiracy. After calculating Bey’s sentencing range to be 108-135 months of imprisonment, the District Court sentenced Bey to 120 months of imprisonment. Bey now appeals his sentence.1 We reject his claims.
First, the District Court’s application of a three-level increase in Bey’s offense level for obstruction of justice2 was not in violation of the Fifth and Sixth Amendments. “Once a jury has found a defendant guilty of each element of an offense beyond a reasonable doubt, he has been constitutionally deprived of his liberty and may be sentenced up to the maximum sentence authorized under the United States Code without additional findings beyond a reasonable doubt.” United States v. Grier, 475 F.3d 556, 561 (3d Cir.2007) (en banc). Here, Bey’s sentence of 120 months of imprisonment is below the statutory maximum of 40 years. See 21 U.S.C. §§ 841(b)(1)(B), 846. Our opinion in Grier held that facts related to enhancements may be proven by a preponderance of the evidence. 475 F.3d at 568 (“We will affirm the District Court’s decision to apply the preponderance standard to all facts relevant to the Guidelines....”). Therefore, we reject Bey’s argument that the Government had the obligation of proving beyond a reasonable doubt that he obstructed justice.
Second, the District Court did not err in relying on hearsay evidence to find that Bey obstructed justice. As Bey admits, the Federal Rules of Evidence do not apply in sentencing proceedings. Fed. R.Evid. 1101(d)(3). Instead, evidence presented at sentencing must have a “ ‘sufficient indicia of reliability to support its *761probable accuracy.’ ” United States v. Miele, 989 F.2d 659, 668 (3d Cir.1993) (quoting U.S. Sentencing Guidelines Manual § 6A1.3(a)). Here, we believe that the hearsay evidence — testimony from FBI Agent Kevin Lewis about his interviews with the co-conspirators that Bey allegedly threatened — was sufficiently reliable. The co-conspirators made their out-of-court statements to Agent Lewis during the course of his investigation into Bey’s alleged threats. Had they been dishonest, the co-conspirators would have exposed themselves to charges of making false statements. Thus, they had every reason to be honest with Agent Lewis. Additionally, recorded conversations between Bey and others corroborated Agent Lewis’ testimony. Therefore, the District Court’s reliance on hearsay evidence at sentencing was not in error.
Third, Bey’s sentence was not unreasonable. On appeal, Bey’s sole argument is that a co-defendant who also threatened -witnesses received a lesser sentence for that conduct, creating an unwarranted sentencing disparity. Even assuming that Bey’s co-defendant was given a lesser sentence for his threats, this is not enough to show that Bey’s sentence was unreasonable. United States v. Parker, 462 F.3d 273, 276-77 (3d Cir.2006) (“[Disparity of sentence between co-defendants does not of itself show an abuse of discretion.” (internal quotations and citation omitted)). As a result, we will affirm the sentence.
. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
Bey's plea agreement contained a limited appellate waiver that the Government does not invoke on appeal. Accordingly, Bey's appellate waiver does not bar our review of any of the issues that he has raised. See United States v. Goodson, 544 F.3d 529, 534 (3d Cir.2008) ("[A]n appellate waiver may have no bearing on an appeal if the government does not invoke its terms.”).
. The District Court found that, while in pretrial custody, Bey threatened three co-conspirators in order to dissuade them from cooperating with the Government. As a result, the District Court concluded that Bey had obstructed justice, and increased his offense level by two levels pursuant to U.S. Sentencing Guidelines Manual § 3C1.1, and one level pursuant to U.S. Sentencing Guidelines Manual § 5K2.0. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471844/ | OPINION
SMITH, Circuit Judge.
This case arises from a 2006 land sale agreement between Peter and Anne Scott (“the Scotts”) and Stephen and Nancy Hoke Turner (“the Turners”). The Scotts sued the Turners, claiming that they breached a contract to purchase land located in Freedom Township in Adams County, Pennsylvania. The District Court granted summary judgment for the Turners. This timely appeal followed. We will affirm the judgment of the District Court.1
Section 403 of Freedom Township’s Municipal Subdivision and Land Development Ordinance (“the Ordinance”) requires roadways in the Township to meet certain specifications, including minimum right-of-way widths of 50 feet and minimum cart-way widths of 32 feet. On February 11, 1993, landowners Bradley and Mary Yohe obtained a variance to these requirements from the Freedom Township Board of Supervisors (“the Board”). That variance permitted a 16 foot wide gravel “right-of-way” connecting one segment of the Yohes’ lot to Pumping Station Road. The variance excused the right-of-way’s non-conformance with the Ordinance so long as certain conditions were met. First, the variance was limited to the “period of time during which the [Yohes] own[ed] all of the land.” The variance did “not extend to subsequent owners.” Second, if the land in question were ever “subdivided to provide for more than three residential building lots,” then the variance would be “void,” and the right-of-way would have to be upgraded to conform with the Ordinance.
In December of 1993, the Yohes sold a portion of their land (“Lot 2”) to the Scotts, while retaining part of it (“Lot 1”) for themselves. The Scotts built a residence on Lot 2, which was serviced by the right-of-way through Lot 1. The Yohes later subdivided Lot 1, such that there are currently four residential lots on the tract of land described in the variance.
In October of 2006, the Scotts agreed to sell Lot 2 and an adjoining lot to the Turners for $1.25 million. That agreement required the Scotts to convey “good and marketable” title to the land. Pursu*763ant to the agreement, the Turners paid a $50,000 deposit into escrow. Upon learning of the variance, however, the Turners refused to complete the sale. The Scotts sued the Turners for breach of contract; the Turners counterclaimed for the return of their deposit. Both parties moved for summary judgment. The District Court held that the Scotts, not the Turners, had breached the agreement by failing to provide “marketable title” to the land. The Court granted summary judgment in favor of the Turners and ordered the return of them deposit. The Scotts appealed.
Pennsylvania courts have defined “marketable” title as title “that is free from liens and encumbrances and which a reasonable purchaser, well informed as to the facts and their legal bearings ... would in the exercise of that prudence which businessmen ordinarily bring to bear upon such transactions, be willing to accept and ought to accept.” Barter v. Palmerton Area School Dist., 899 Pa.Super. 16, 581 A.2d 652, 654 (1990). Under Pennsylvania law, title is unmarketable if it would expose “the party holding it to litigation.” Swayne v. Lyon, 67 Pa. 436 (1871); see also Moyer v. De Vincentis Constr. Co., 107 Pa.Super. 588, 164 A. 111, 112 (1933) (“one is not compelled to purchase under an agreement for sale of real estate ... where the title is in such condition that the purchaser will be exposed to litigation”). We agree with the District Court that the Scotts’ title was unmarketable because the variance permitting the gravel right-of-way expired, leaving the property owner exposed to a lawsuit by the Township to conform the right-of-way to the Ordinance. See Pennsylvania Municipalities Planning Code, 53 P.S. §§ 10515.1, 10515.3 (empowering municipalities to sue in law or equity to enforce subdivision and land development ordinances).
The variance clearly states that “in the event the acreage shown ... is further subdivided to provide for more than three (3) residential building lots, then this variance shall be void” and the cartway improved to conform to the Ordinance. This language does not require that the right-of-way serve more than three lots, as the Scotts claim. The mere creation of the fourth lot terminated the variance, to the extent that the Scotts’ 1993 purchase had not already done so.2
The Scotts admit that there are presently four residential lots on the land described in the variance. Therefore, the variance has expired. Given the non-conforming right-of-way and the expired variance, the township could sue the owners of the property and force them to upgrade the road at any time. As a results, the Scotts’ title was unmarketable, and the Turners’ refusal to consummate the sale was not a breach of contract. See Moyer, 164 A. at 112 (holding title unmarketable where the building to be sold was built in violation of a local ordinance, as the buyer “could not take possession without immediately becoming a violator of the law and subject to suit”). Rather, the Scotts *764breached the land sale agreement by failing to provide marketable title. We will therefore affirm the District Court’s order granting summary judgment for the Turners.
. The Scotts filed their lawsuit in the Adams County Court of Common Pleas. The Turners properly removed the case to the United States District Court for the Middle District of Pennsylvania, pursuant to 28 U.S.C. §§ 1441 and 1446. The District Court had jurisdiction over the Turners' counterclaim under 28 U.S.C. § 1367. We have jurisdiction under 28 U.S.C. § 1291 and "exercise plenary review over the District Court’s grant of summary judgment.” Shuman ex rel Shertzer v. Penn Manor School Dist., 422 F.3d 141, 146 (3d Cir.2005) (internal citations omitted). Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The facts must be viewed in the light most favorable to the non-moving party and all reasonable inferences from the evidence must be drawn in that party's favor. Conopco, Inc. v. United. States, 572 F.3d 162, 165 (3d Cir.2009).
. Arguably, the variance expired when the Yohes sold part of the land to the Scotts. The variance plainly stated that it was "limited to the period of time during which [the Yohes] own all of the land ... and [did] not extend to subsequent owners.” The Scotts claim that this provision should not void the variance because the Board voted in November of 2007 to honor the variance notwithstanding the 1993 sale. We need not decide the legal import of the Board's vote, since we believe that in any event, the variance expired with the creation of the fourth lot. We note that even though the Board voted not to enforce the first condition of the variance, it reaffirmed the three-lots-only condition. The minutes of the November 2007 meeting reflect the Board’s continuing view that "[i]f a fourth lot was ever subdivided, (with Board approval needed) the road would have to comply with the road specifications required by the township.” | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471846/ | OPINION
PER CURIAM.
Ray Dean Colburn, an inmate at Columbia County Prison, in Bloomsburg, Pennsylvania, appeals pro se from the District Court’s dismissal of his petition for a writ of habeas corpus. Because we conclude that this appeal presents no substantial question, we will summarily affirm. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
On July 16, 2007, Colburn entered a plea of guilty to conspiracy to distribute a controlled substance. In April 2008, while awaiting sentencing, Colburn filed this federal habeas petition pro se, claiming a violation of due process, a violation of Federal Rule of Criminal Procedure 5, and ineffective assistance of counsel. The District Court determined that, whether filed pursuant to 28 U.S.C. § 2255 or § 2241, the petition was premature, and dismissed the petition without prejudice. The Dis*765trict Court also noted that Colburn had ignored its emphatic instructions that all claims must be filed through his attorney, and directed the Clerk of the District Court not to docket any further pro se filings in this matter while Colburn is represented by counsel.
Colburn timely appealed. We have jurisdiction over the appeal under 28 U.S.C. § 1291 and § 2258(a), and we exercise plenary review over the District Court’s order.1 See Okereke v. United States, 307 F.3d 117, 119 (3d Cir.2002).
Colburn did not specify whether he filed his petition pursuant to § 2255 or § 2241. Because Colburn has not yet been sentenced, § 2255 does not apply.2 Relief is available under § 2241 “only where the petitioner demonstrates that some limitation of scope or procedure would prevent a § 2255 proceeding from affording him a full hearing and adjudication of his -wrongful detention claim.” Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir.2002). As the District Court explains, once he is sentenced, Colburn may pursue his claims first on direct appeal and then through a petition for a writ of habeas corpus under § 2255.
We agree with the District Court that Colburn’s petition, filed before he was sentenced, is premature. Under United States v. Vampire Nation, 451 F.3d 189, 206 (3d Cir.2006), the District Court acted within its authority when it precluded Col-burn from filing pro se motions in this matter while represented by counsel. We conclude that the appeal presents no substantial question. Accordingly, we will summarily affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.
. A certificate of appealability is not required for this appeal. See 28 U.S.C. § 2253; see also United States v. Baptiste, 223 F.3d 188, 189 n. 1 (3d Cir.2000) (a certificate of appealability is not required by statute, rule, or case law to appeal from a denial of a writ of error coram nobis under 28 U.S.C. § 1651(a)).
. 28 U.S.C. § 2255(a) applies to "[a] prisoner in custody under sentence of a court established by Act of Congress...." | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471848/ | OPINION
SMITH, Circuit Judge.
Appellant Victor Tartaglia filed a Complaint alleging that the Appellees forged his signature on certain lease documents and inflated the value of certain equipment used to secure the loans. The District Court granted Appellees’ Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) under the doctrines of collateral estoppel and res judicata. On appeal, Tartaglia argues that this decision was in error because the District Court 1) failed to consider his contribution claim; and 2) incorrectly construed the purportedly preclusive New York state court decision as including a finding that no forgery occurred.1 We will affirm.2
First, the District Court did address Tartaglia’s contribution claim. In its recitation of the factual and procedural background, the District Court noted that Tar-taglia was “alleging counts of fraud and contribution stemming from the lease agreements.... ” (J.A. 4a (emphasis added).) It later held that “Tartaglia’s claims are barred by issue preclusion,” and that “Tartaglia’s claims are also barred by claim preclusion.” Thus, it is clear that the District Court did consider Tartaglia’s contribution claim and determined that it *767was barred by both collateral estoppel and res judicata.
Second, the New York state court did determine that Tartaglia’s signature was not forged. In the state court proceedings, the state court imposed liability on Tartaglia as a guarantor or co-guarantor of certain leases that were in default. There, Tartaglia’s defense was that he never agreed to guarantee any of the leases because his signature was forged on the lease documents. Accordingly, as the District Court correctly stated, the state court “could not have found Tartaglia liable under the lease agreements without having decided that his personal guaranty was valid.” In other words, before it could impose liability on Tartaglia, the state court must have determined that no forgery occurred.
Tartaglia’s argument to the contrary is unfounded. Tartaglia contends that the state court only decided that the evidentia-ry proof he submitted was not in the proper form, not that his signature was not forged. He points to the state court’s statement that the plaintiff in that case “submitted evidence in admissible form.” But that statement says nothing about any evidence that Tartaglia, a defendant, submitted. Nor is it logical to conclude that since the state court deemed the plaintiffs evidence “in admissible form,” that it believed Tartaglia’s evidence in improper form. As a result, we will affirm the District Court’s order granting the Appel-lees’ Motion to Dismiss.
. Tartaglia also asserts for the first time on appeal that 1) several of his claims are based on evidence discovered since the resolution of the prior state court action, so they cannot be barred by collateral estoppel or res judicata; and 2) New York law permits him to seek contribution notwithstanding collateral estop-pel or res judicata. Additionally, in his reply brief, Tartaglia argues for the first time that the Appellees did not even seek to dismiss the contribution allegation contained in his Complaint. These arguments are all waived. Gass v. V.I. Tel. Corp., 311 F.3d 237, 246 (3d Cir.2002) ("[I]t is well established that failure to raise an issue in the district court constitutes a waiver of the argument.” (internal quotations and citation omitted)); Joint Stock Soc’y v. UDV N. Am., Inc., 266 F.3d 164, 178 n. 9 (3d Cir.2001) ("Because the plaintiffs in the present case did not develop this argument until their reply brief, we do not regard it as properly before us.”).
. The District Court had jurisdiction under 28 U.S.C. § 1332(a)(1), and we have jurisdiction under 28 U.S.C. § 1291. Our review of the District Court's order granting Appellees’ Motion to Dismiss is plenary, and "we accept as true all well-pled factual allegations in the complaint and all reasonable inferences that can be drawn from them, and we affirm the order of dismissal only if the pleading does not plausibly suggest an entitlement to relief.” Fellner v. Tri-Union Seafoods, L.L.C., 539 F.3d 237, 242 (3d Cir.2008). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471852/ | OPINION OF THE COURT
RENDELL, Circuit Judge.
Christopher Phillips pled guilty to one count of distribution of child pornography, in violation of 18 U.S.C. § 2252A(a)(l). The District Court sentenced him to a within-Guidelines sentence of 240 months’ imprisonment and 10 years’ supervised release. On appeal, he argues that the District Court did not adequately consider the *773sentencing factors in 18 U.S.C. § 3553(a) and that the sentence was greater than necessary to accomplish the statutory sentencing goals. We conclude that the District Court appropriately considered the § 3553(a) factors, and we will affirm the District Court’s sentencing order.
Phillips was one of a number of men charged with child pornography offenses after the Delaware State Police executed a search warrant at the residence of Paul Thielemann. A forensic examination of Thielemann’s computer revealed transcripts of online chats between Thielemann and Phillips. The two men discussed child pornography and the sexual exploitation of children, and Thielemann suggested that Phillips abuse the 8-year-old victim, a child who was under Phillips’s control. The conduct that followed, memorialized in the chat transcripts, led to Phillips’s arrest and guilty plea.1
At sentencing, the District Court calculated the Guideline range. The base offense level was 32, under section 2G2.1(a) of the Guidelines, because Phillips had distributed child pornography in a way that caused a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of the conduct. The court assessed a four-level increase because the victim was a minor under the age of 12, and a two-level increase because the offense involved sexual contact. An additional two-level increase was applied because the offense involved distribution, and a final two-level increase was applied because the victim was in the custody and care of the defendant. The court reduced the total adjusted offense level of 42 down to 39, because Phillips accepted responsibility. He had no prior criminal record, and therefore a criminal history category of I. The court’s Guideline calculations yielded a range of 262-327 months. It recognized that because 20 years was the statutory maximum, the Guideline range became 240 months. Phillips does not challenge the Guideline calculation.
In the sentencing colloquy, the court acknowledged that Phillips had been the victim of childhood sexual abuse and that he had abused the victim only after multiple requests from Thielemann. However, the court noted, the victim was a young child in Phillips’s custody and under his control — not “an unidentified child whose exploitation has been multiplied many times over through distribution via the Internet.” (App.91.) The court said that it had sentenced the defendants in the related cases, including Thielemann, and that while it recognized individual factors weighing in favor of Phillips, it had no basis to determine which conduct — Phillips’s or Thielemann’s — was worse. Therefore, after considering the factors in 18 U.S.C. § 3553(a), the court found that a 240-month sentence “recognizes the need for punishment, deterrence, protection of *774the public and rehabilitation, and certainly is consistent ... with the other sentences handed down for all the other defendants .... ” (App.92.)2
We conclude that the District Court reasonably exercised its discretion. The sentence was procedurally reasonable: the District Court properly calculated the Guideline range, considered the § 3553(a) factors, and adequately explained the reasoning behind the sentence. It discussed the history and characteristics of Phillips; the nature and circumstances of the offense; the need for punishment, deterrence, protection of the public, and rehabilitation; the applicable Guideline range; and the need to avoid unwarranted disparities among defendants with similar records who were found guilty of similar conduct. The sentence was within the Guidelines, so the District Court did not need to explain any deviation. See United States v. Wise, 515 F.3d 207, 217 (3d Cir.2008) (citing Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)).
Since the District Court did not err procedurally, we review the substantive reasonableness of the sentence under an abuse of discretion standard, considering the totality of the circumstances. We affirm a sentence as long as it “falls within the broad range of possible sentences that can be considered reasonable in light of the § 3553(a) factors.” Gall, 128 S.Ct. at 597. A within-Guidelines sentence is more likely to be a reasonable one. Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Cooper, 437 F.3d 324, 331 (3d Cir.2006).
Phillips exploited a young child who was under his care by producing a webcam transmission depicting his sexual contact with her. He did this at the request of Thielemann, who promised him money for the images. Even defense counsel acknowledged that Phillips “bears a heavy responsibility for exploiting the child.... [H]e’s ultimately responsible for any damage that it may have caused.” (App.85.) While the District Court agreed that Phillips’s history and his initial resistance to Thielemann’s requests weighed in his favor, the fact that the victim was under his control meant that “I truly don’t have any reasoned basis to determine which conduct, yours or that of Mr. Thielemann[ ], is the worst.... I cannot sentence you to anything less than ... Mr. Thielemann, which is the statutory maximum of 240 months.”3 (App.91.)
The court considered the differences between Phillips and Thielemann, and concluded that while their actions may have been different, each man deserved the statutory maximum. Given the facts of the case, the District Court’s sentence of 240 months is within the broad range of possible sentences that can be considered reasonable under the § 3553(a) factors. The court made a reasoned and reasonable decision that the sentence was justified, and we will not disturb the sentence.
For the reasons set forth above, we will AFFIRM the Judgment and Commitment Order of the District Court.
. On June 16, 2006, Thielemann asked Phillips to turn on his webcam and put the victim on his lap, and Phillips complied. Thielem-ann offered Phillips money to expose his penis to the victim and to touch her genitals. Phillips accepted the offer, and confirmed that the victim had seen Thielemann's penis on the computer screen via the webcam. Thielem-ann suggested that Phillips pull up the victim's skirt and rub her chest under her shirt, which Phillips did. When Thielemann asked if Phillips had put his hand down the victim’s shorts, Phillips responded that he had. Thiel-emann then said that he wanted the victim to see him ejaculate, and proposed that Phillips sit the victim on his leg while he masturbated. A few minutes later, Phillips said that he had not enjoyed the encounter and that Thielem-ann shouldn’t worry about giving him anything in exchange.
After he was arrested, Phillips admitted that he had the chats with Thielemann, that he put the victim on his lap, and that it was possible that the victim viewed Thielemann's penis via the webcam. He claimed that when the victim was on his lap, he only touched her leg.
. Thielemann also received a sentence of 240 months imprisonment, which we have affirmed. United States v. Thielemann, 575 F.3d 265 (3d Cir.2009).
. Given that the Guideline range of 262-327 months — which takes into account Phillips's offense characteristics and criminal history— was well in excess of the sentence imposed on Phillips, we cannot hold, as Judge Ambro urges, that his sentence was substantively unreasonable. Moreover, the District Court’s analysis from a procedural standpoint was adequate. We can find no basis for requiring the court to do more than it did in assessing the § 3553(a) factors. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471853/ | AMBRO, Circuit Judge,
Dissenting.
I have significant concerns that the 20-year sentence for Christopher Phillips, the same as that of his more culpable co-defendant, Paul Thielemann, is procedurally and substantively flawed. I thus respectfully dissent.
I. Facts
The majority opinion sets out the bare facts that led to Phillips’s arrest, as well as the facts surrounding his subsequent guilty plea and sentencing. I add the following, which I consider relevant. Phillips had an extremely difficult upbringing, which included being repeatedly molested by his step-father when he was six and seven. According to the psychological evaluation presented by Phillips’s attorney, this left him with a desire “to satisfy the needs of another from whom he is desperately wanting acceptance” and an “extreme suggestibility” that makes him susceptible to manipulation. A44. Phillips’s sexual relationship with Thielemann began in 2006, during a period of difficulty with his girlfriend, and consisted almost entirely of interaction online (via webcam and web chats). Virtually from the start of their relationship, Thielemann began trying to coax Phillips into including in their sexual activities an eight-year-old girl under Phillips’s control.4
Initially, Phillips resisted. He stated categorically that he would not do that (“look im not going to do anything with [the] girl so I don’t know what to tell u,” A17), citing both moral objections (“its not the right thing to do,” A16), and fear of the legal consequences (“don’t think im going to try anything with her I like my freedome,” A18) as the basis for his position. Thielemann persisted. He tried to reassure Phillips by claiming (falsely) that he had had sex with his four-year-old niece multiple times and that each time she had forgotten. Thielemann then sent Phillips a photo of a three-year-old performing fellatio, claiming (again, erroneously) that he was the man in the photo. Phillips continued to be reluctant to go through with Thielemann’s suggestion, but, in a June 16, 2006 webcam chat, he relented. That single incident — the details of which are accurately recounted by the Majority5 — became the sole basis for Phillips’s conviction. When the web chat ended, Phillips wrote that “I really hated that but I tell you now I would never do it again.” A26.
Police found the chats on Thielemann’s computer in February 2007, after America Online detected a child pornography transmission by Thielemann to a third party. They raided Phillips’s home in March 2007, but found no child pornography. On January 10, 2008, Phillips pled guilty to transport of child pornography in violation of 18 U.S.C. § 2252A(a)(l). Thielemann, who was a co-defendant with Phillips, pled guilty to the same charge. The District Court sentenced both men to the statutory maximum of 20 years (the minimum was five)6 even though Thielemann had ex*776changed child pornography with seven friends and condoned it in online chats with them in addition to trying to manipulate Phillips into having sex with a young girl entrusted to his care.
Phillips was not charged with sexual abuse or presenting the live sexual performance of a minor, although these state law crimes describe Phillips’s offense better than the federal transmitting of child pornography charge.7 If he had been charged under state law, Phillips would have faced a very different sentence. Delaware imposes no mandatory minimum sentence for the sort of sexual contact with a minor in which Phillips engaged. 11 Del. C. §§ 1109(5), 4205(b)(2). It requires as little as two years for a live performance conviction. See 11 Del. C. §§ 768, 4205(b)(7).
II. Discussion
In relevant part, 18 U.S.C. § 3553(a) commands the District Court to consider the following factors in sentencing: (1) offense and offender characteristics; (2) the need for a sentence to reflect the basic aims of sentencing, namely (a) “just punishment” (retribution), (b) deterrence, (c) incapacitation, (d) rehabilitation; (4) the Sentencing Guidelines; (5) and the need to avoid unwarranted disparities (uniformity). Rita v. United States, 551 U.S. 338, 347-48, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). I have, as noted at the outset, significant concerns, both procedural and substantive, with the District Court’s application of these factors that lead me to disagree with the District Court and my panel colleagues.
A. Procedural Reasonableness
i. Omission and Misapplication of Factors
The District Court did not consider most of the sentencing factors and misapplied one that it did. Before we can affirm a sentence, we must be convinced that the District Court actually gave meaningful consideration to each factor; that it claims to have considered each is not enough. See United States v. Olhovsky, 562 F.3d 530, 547 (3d Cir.2009). Here, the District Court stated that it considered all the factors, but the record indicates that it decided its sentence on uniformity and retribution alone. It said to Phillips:
I believe you were the victim of childhood sexual abuse. Mr. Thielemann ... claimed that he was. I do not believe that, but I do believe you were.
I also understand from the record that Thielemann entreated you multiple *777times before you acquiesced in the conduct. ...
I have to balance that against the fact that the victim in this case was under your control and was not some unidentified child whose exploitation has been multiplied many times over through distribution via the Internet. And, quite frankly, when I look at all the other co-defendants and when I look at the pre-sentence report and what I have in front of me, I truly don’t have any reasoned basis to determine which conduct, yours or that of Mr. Thielemann’s, is the worse. And, therefore ... I cannot sentence you to anything less than that of Mr. Thielemann....
A91. As this (the District Court’s entire discussion of the sentencing factors) shows, the Court selected Phillips’s sentence by comparing him to Thielemann (and, to a lesser extent, his other co-defendants). It concluded that Phillips’s conduct was as bad as Thielemann’s because, although Thielemann goaded Phillips into it and (unlike Phillips) did not perform his actions against the backdrop of his own history of childhood sexual abuse, Phillips (unlike Thielemann) exploited someone in his care.
This near-exclusive focus on comparing Phillips to Thielemann was a misapplication of the uniformity factor. Co-defendant comparisons are certainly apt. But we have explained that “Congress’s primary goal in enacting [the uniformity factor] was to promote national uniformity in sentencing rather than uniformity among co-defendants in the same case.” United States v. Parker, 462 F.3d 273, 277 (3d Cir.2006). Going beyond purely local comparisons is especially important in a case like this one, where the facts are atypical for the underlying offense (distribution of child pornography). That uniqueness creates a need for more reference cases in order to be able truly to compare like to like and thus honor uniformity without minimizing the distinctive characteristics of the offender. Yet there is no indication that the District Court made any effort to consider nationwide sentencing. If it had done so, it would have discovered that there is no recent case in which a court sentenced a similar offender to the statutory maximum. A review of recent cases nationwide reveals that courts sentenced a similar offender to 10 years less than Phillips and a worse offender to 20 months less.
In 2007 (the full year preceding Phillips’s sentencing), courts nationwide reported only one case to the Sentencing Commission in which a defendant was sentenced under the same statute, Guideline, range, and enhancements as Phillips.8 Richard Hawes photographed his two-year-old granddaughter engaging in sexually explicit conduct. See Government’s Objection to Relief Requested in Defendant’s Motion for Bail Hearing at 1, United States v. Hawes, No. 05-cr-00117-PB-1 (D.N.H. Sept. 26, 2005). The District Court there sentenced him to 10 years less than Phillips. It thought that evidence suggested that Hawes was not a true pedophile, making him a reduced threat to the community, but that he nevertheless had shown a desire to engage in the offensive conduct. See Transcript of Sentencing at 11, id. (Mar. 21, 2007). If the District Court here had considered that case (the District Court in New Hampshire imposed Hawes’ sentence 13 months before the District Court imposed Phillips’s), *778it might have found the disparity in sentences between Phillips and Hawes troubling. The men appear similar, in that the sexual interest of both in children is in question and their offenses were unplanned. But unlike Hawes, Phillips showed no initiative and produced no permanent record of the child’s abuse.
Our Court recently affirmed a sentence of 220 months (20 less than Phillips’s) under the same statute, Guideline range, and enhancements for a man who videotaped himself violently sexually assaulting his girlfriend’s seven-year-old niece. See United States v. Valenzuela, 304 Fed.Appx. 986, 988 (3d Cir.2008).9 If the District Court had considered the sentence in that case (imposed four months before it sentenced Phillips), it might have found the disparity with Phillips’s sentence troubling. Unlike Phillips, Valenzuela, who acted on his own initiative, attacked his victim, repeatedly inserting his fingers into her vagina while she cried in pain.
In addition, I find no evidence that the District Court gave meaningful consideration to incapacitation. That factor supports a lesser sentence the lesser the threat posed by the defendant. The chats make clear that Phillips did not initiate the offensive conduct in this instance (and, in fact, that he only engaged in it with some reluctance and that he renounced the act immediately afterward). That would seem relevant to an assessment of the length of sentence required to protect society from Phillips. Yet there is no evidence that the District Court considered Phillips’s apparent lack of a predatory disposition in applying this factor.
Finally, the District Court did not appear to give meaningful consideration to rehabilitation. Phillips submitted a psychologist’s report that described a condition of “extreme suggestibility” that appears consistent with Phillips’s behavior in the chats. The report described Phillips as crying “freely” and reporting depression, guilt, sleep disturbance, fatigue, and weight loss as a result of confinement. A40. It concluded that “psychoeducational treatment combined with psychotherapy,” not imprisonment, will “allow [Phillips] a fuller understanding of the relationship between his victimization and his current charges.... ” A45. The Court never mentioned the report directly or these conclusions other than noting in passing that Phillips was sexually abused as a child. This is troubling because the report suggests that prison will not cure the condition that led to Phillips’s crime.
I would remand to allow the District Court to give more consideration to uniformity, incapacitation, and rehabilitation.
ii The District Court’s Possible Confusion Over Its Ability to Disagree with Guidelines Policy
I am further concerned on procedural grounds because the District Court seemed confused about the proper authority to accord the Sentencing Guidelines. Before we can affirm a sentence meted out by a district court, the record must inspire confidence in us that the court knows its powers. See U.S. v. Hawes, 523 F.3d 245, 256-57 (3d Cir.2008) (Weis, J., concurring); United States v. Rodriguez, 527 F.3d 221 (1st Cir.2008).
Before sentencing Phillips, the District Court said:
[W]hile I agree, quite frankly, that the sentencing guidelines can be applied in an egregious and unreasonable way with these crimes and I think something should be done about it, I have to look at the way I have sentenced everyone else [associated with Thielemann] in connec*779tion with their conduct vis a vis the sentencing guidelines.
A90. After sentencing Phillips, it said, “I certainly believe that there should be a legislative or a higher court than I adjustment [sic] in the sentencing guidelines in this case, but I decline to do that here.” A91. We might read these statements to say that the District Court disagrees with the Guidelines in general, but thinks that they are appropriate for Phillips. In that case, there is no procedural defect.
But we can just as easily read the statements to say that the Court did not think that it had complete discretion to vary Phillips’s sentence from the Guidelines’ calculation. If that is so, there is procedural error because, as the Supreme Court recently reiterated, a District Court may sentence below the Guidelines based solely on a policy disagreement with them. Spears v. United States, — U.S. -, 129 S.Ct. 840, 843, 172 L.Ed.2d 596 (2009).
The possibility that the District Court was not aware of its power to vary below the Guidelines as a matter of policy is particularly important in the child pornography context. District courts around the country are refusing to follow parts of the child pornography Guidelines because of policy disagreements with them. See, e.g., United States v. Grober, 595 F.Supp.2d 382, 390-94 (D.N.J.2008) (Guidelines range: 235 to 293 months—sentence: 60 months); United States v. Shipley, 560 F.Supp.2d 739, 744-46 (S.D.Iowa 2008) (Guidelines range: 210 to 240 months— sentence: 90 months); United States v. Hanson, 561 F.Supp.2d 1004, 1008-12 (E.D.Wis.2008) (Guidelines range: 210 to 262 months—sentence: 72 months); United States v. Baird, 580 F.Supp.2d 889, 894-96 (D.Neb.2008) (Guidelines range: 46 to 57 months — sentence: 24 months).
Courts have good reason for disagreeing with the child pornography Guidelines. Congress tasked the Sentencing Commission with writing Guidelines that reflect the § 3553(a) sentencing factors based on empirical data on past sentencing and advancements in the knowledge of human behavior, among other things. See Rita, 551 U.S. at 347-49, 127 S.Ct. 2456. But starting in the mid-1990s, Congress effectively took control of the child pornography Guidelines away from the Sentencing Commission, increasing Guidelines ranges, and sentences, exponentially between 1996 and 2006. See Troy Stabenow, Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines (July 3, 2008), at 3-4, 12, available at http://www. fd.org/pdl_lib/childpornjulyfevision.pdf (last visited Jul. 29, 2009).
The Guidelines considered by the District Court in sentencing Phillips illustrate this inflation. In 1994, the base offense level for § 2G2.1 (production of child pornography), the Guideline provision under which the District Court sentenced Phillips, was 25. With then-applicable enhancements, Phillips’s Sentencing Guidelines range would have been 78 to 97 months, roughly a third of the range applied by the District Court in this case. In 1995, Congress directed the Sentencing Commission to increase the base offense level from 25 to at least 27. See Pub.L. 104-71 § 3. The Sentencing Commission raised it to 27; Phillips’s Guidelines range (again with then-applicable enhancements) would have been 97 to 121 months, still half of the current range. See Guidelines § 2G2.1(a) (1997). In 2004, Congress increased the statutory minimum for production offenses from 10 to 15 years. See Pub.L. 108-21 § 103. The Sentencing Commission responded by increasing the base offense level from 27 to the current 32 to “ensure” that the mandatory minimum would be met by the Guidelines in almost every case.10 Guidelines Supple*780ment to Appendix C at 59 (2006).
The increases do not appear to reflect a belief by the Sentencing Commission that underlying changes in child pornography criminality, empirical data on sentencing, or the state of the art in the behavioral sciences, required a change in the sentencing ranges. But Phillips’s Guidelines range jumped by more than 100% to its current level. Given this history, the District Court’s characterization of the Guidelines in this case as “egregious” is understandable. I would remand so that the Court may determine whether that egregiousness is reason enough to give Phillips a below-Guidelines sentence.
B. Substantive Reasonableness
“[Tjhere are times when a discussion of procedural error will necessarily raise questions about the substantive reasonableness of a sentence.” Olhovsky, 562 F.3d at 553. In this case, I believe that the District Court’s failure to apply all the sentencing factors in light of the Phillips’s individual characteristics and circumstances — -and, in particular, those circumstances that distinguish him from Thielem-ann — resulted in a sentence outside the bounds of what could be considered reasonable. See United States v. Tomko, 562 F.3d 558, 568 (3d Cir.2009) (en banc) (explaining that a sentence is substantively unreasonable only if “no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the [Djistrict [Cjourt provided”).
I do not mean to minimize what Phillips did. At oral argument, Phillips’s own counsel described Phillips’s actions as “horrific.” But I believe that to sentence him to the statutory maximum — based on (1) one incident, that (2) he agreed to engage in only after significant pressure from Thielemann, when (3) he is himself a victim of childhood sexual abuse that (according to at least one psychological evaluation) left him particularly vulnerable to the kind of manipulation that occurred here — displays a failure to perform the kind of finely grained analysis sentencing requires. As we have explained elsewhere, “[tjhe hideous nature of an offender’s conduct must not drive us to forget that it is not severe punishment that promotes respect for the law, it is appropriate punishment.... [Ujnduly severe punishment can negatively affect the public’s attitude toward the law and toward the criminal justice system.” Olhovsky, 562 F.3d at 551 (emphasis in original). In my view, casually throwing Phillips into the same boat as Thielemann, a predator who was the hub for all the criminal activity that spawned this case among others, risks doing exactly that.
* * * * * *
For these reasons, I would vacate Phillips’s sentence and remand to the District Court for resentencing. Because the majority affirms, I thus respectfully dissent.
. Because 18 U.S.C. § 3509(d) protects the identity of a child victim of sexual abuse or exploitation, we do not disclose it.
. I would add just one detail to the description provided in footnote one of the majority opinion — even after Phillips agreed to include the girl in their webcam session, he repeatedly resisted Thielemann's pleas to escalate the encounter. He refused Thielemann’s requests that he make the girl perform oral sex on him, touch his penis, or take off her skirt and seat her in his lap in her panties. A25. He also refused to allow the girl to see Thielem-ann ejaculate. A26. In addition, I note that, because the webcam images were not saved, we can only infer, based on the chat transcript, what actually happened during the June 16 incident.
.Although the men pled guilty to trafficking crimes, which carry a base offense level of 22, the District Court followed a cross-reference in the Guidelines for traffickers who cause *776minors to engage in sexual conduct. Pursuant to the cross-reference, it applied the base offense level of 32 normally used for production crimes. See U.S. Sentencing Guidelines § 2G2.2(c)(1). To Phillips, the District Court applied enhancements for a minor under age 12, sexual contact, and supervisory relationship, which, when combined with reductions for his acceptance of responsibility, resulted in an offense level of 37 and a sentencing range of 210 to 262 months. To Thielemann, the District Court applied enhancements for a minor under age 12, sexual contact, distribution, and use of a computer to solicit participation, leading (with the reduction for acceptance of responsibility) to an offense level of 39 and a sentencing range of 262 to 327 months. Because the statutory maximum was 240 months, the effective ranges were 210 to 240 for Phillips and 240 for Thielem-ann.
. The chief element that distinguishes a child pornography offense from other offenses relating to the sexual exploitation of children is that the former creates "a permanent record of the” child's exploitation, such that “the harm to the child is exacerbated by [its] circulation.” New York v. Ferber, 458 U.S. 747, 759, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). That element is missing here, as in this case the circulation (via webcam) of the images of the girl's exploitation was simultaneous to the underlying exploitation and no permanent record was ever created.
. I obtained this result from a search of Sentencing Commission databases. See Federal Justice Statistics Program: Defendants Sentenced Under the Sentencing Reform Act, 2007, Inter-University Consortium for Political and Social Research, available at http:// www.icpsr.umich.edu/, Study No. 24232 (and secondary databases referenced therein).
. I consult this opinion not for its prece-dential authority but as evidence of past sentencing relevant to consideration of uniformity-
. In tailoring § 2G2.1 to the statutory minimum for production, the Commission also did *780not take into account defendants, like Phillips, who are subject to that Guideline because of the cross-reference at § 2G2.2(c)(1). The statutory minimum for production does not apply to them. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471856/ | OPINION
SMITH, Circuit Judge.
Appellant Farren Mason, Sr., pleaded guilty to three counts of distribution and possession with intent to distribute five grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(l)(B)(iii). The District Court sentenced him to a within-Guidelines term of 57 months of imprisonment for each count, to be served concurrently. On appeal, he claims that his sentence is both procedurally and substantively unreasonable. We assess procedural and substantive reasonableness by applying the abuse-of-discretion standard. United States v. Tomko, 562 F.3d 558, 567 (3d Cir.2009) (en banc). “[A]n abuse of discretion has occurred if a district court based its decision on a clearly erroneous factual conclusion or an erroneous legal conclusion.” Id. at 567-68. We will affirm.1
First, we do not believe that the District Court misinterpreted the “minor role” provision of the Sentencing Guidelines. U.S. Sentencing Guidelines Manual § 3B1.2. “[T]he appropriateness of a minor *783role adjustment turns on ‘the relativity of [the defendant’s] conduct to the total [relevant conduct]..." United States v. Isaza-Zapata, 148 F.3d 236, 239 (3d Cir.1998) (quoting United States v. Headley, 923 F.2d 1079, 1085 (3d Cir.1991)). “The defendant bears the burden of demonstrating that ... the minor role adjustment should apply.” Id. at 240. Here, Mason claims that the District Court improperly focused on his offenses of conviction in determining whether he had a minor role, instead of considering the existence of a larger drug distribution scheme involving additional drug sales by others. But Mason never asserted in the District Court that he was a participant in some larger drug trafficking scheme. In his presentence position papers, Mason presented three reasons for a minor role reduction: 1) “he was selling his nephew’s cocaine at his nephew’s direction for a fee ... 2) “the nephew was selling crack over the course of at least August 2005 through September 2007 ... ”; and 3) “the nephew was the source of the crack cocaine in this case.... ” The second reason suggests that additional drug sales occurred; however, Mason never claimed that these additional drug sales were “jointly undertaken criminal activity” in which he was a participant, or that he otherwise “aided, abetted, counseled, commanded, induced, procured, or willfully caused” them. U.S. Sentencing Guidelines Manual § lB1.3(a)(l) (defining “relevant conduct” for Guidelines calculations). Indeed, the District Court notified Mason that he could, if he wanted to, argue at sentencing that “his nephew’s additional drug dealing is somehow relevant conduct in this case ...,” but Mason did not do so. Since Mason made no showing that he was involved in his nephew’s additional drug sales or that he otherwise participated in some larger drug trafficking scheme, the District Court properly focused its inquiry on whether the nephew’s supplying and directing of Mason’s drug sales warranted granting Mason a minor role reduction.
Second, we reject Mason’s claim that the District Court improperly gave the Guidelines presumptive weight. Mason places undue emphasis on the Court’s statement that “the sentencing guidelines ... would only be advisory to the Court, therefore, for good reason, the Court may sentence you outside of the recommended guideline range.” The Court made this statement at Mason’s guilty plea hearing almost three months prior to Mason’s sentencing. It sheds no light on whether the Court presumed the Guidelines to be reasonable at sentencing. Additionally, the Court’s statement does not demonstrate a belief that absent “good reason,” the Court could not sentence outside of the Guidelines range. At most, the Court’s statement reveals an adherence to the notion that “good reason” is sufficient to justify a variance from the Guidelines range; it does not show that the Court improperly thought that “good reason” was necessary to justify a variance. Similarly, we see no merit in Mason’s assertion that, by responding to a call for “leniency” with the statement “I’m bound by the law as well,” the Court suggested a belief that varying from the Guidelines was incompatible with the law.
Third, we see no error in the District Court’s refusal to vary from the Guidelines in order to account for the disparity between Guidelines’ recommendations for crimes involving crack and powder cocaine. Here, the District Court determined that “under the circumstances of this case, such a variance is unwarranted.” The Court then explained the relevant circumstances: “Defendant’s sentence has already been substantially reduced because of [18 U.S.C. § 3553(f) ] and ... [fjurther reduction is not warranted given the seriousness of *784the multiple offenses in this case.” These statements suggest that the District Court understood that it had the authority to vary from the erack-to-pow-der ratios contained in the Guidelines, but ultimately decided that such a variance was not warranted. Therefore, the District Court committed no error. See United States v. Wise, 515 F.3d 207, 222 (3d Cir.2008) (“[District courts [are] ‘under no obligation to impose a sentence below the applicable Guidelines range solely on the basis of the crack/powder cocaine differential,’ [but] a district court ‘errs when it believes that it has no discretion to consider the crack/powder cocaine differential ....’” (quoting United States v. Gunter, 462 F.3d 237, 248 (3d Cir.2006))).
Fourth, our review of the record reveals that the District Court adequately “acknowledge[d] and responded] to any properly presented sentencing argument which has colorable legal merit and a factual basis.” United States v. Ausburn, 502 F.3d 313, 329 (3d Cir.2007). The Court pointed out that the Bureau of Prisons could adequately treat Mason’s medical condition, rendering a reduction in sentence unnecessary “regardless of whether defendant’s request is treated as a request for departure or a variance....” As noted above, the Court acknowledged and responded to Mason’s request for a variance due to the crack-to-powder ratios. And we see no problem with the District Court’s failure to specifically mention Mason’s employment history and family ties. Mason cited both in his plea for leniency. Therefore, the Court’s specific refusal to grant a variance based on leniency alone was ample acknowledgment and response.2 Indeed, the District Court has provided us with “sufficient justifications on the record to support the sentencing conclusions.” United States v. Levinson, 543 F.3d 190, 196 (3d Cir.2008).
Finally, we believe that Mason’s within-Guidelines sentence of 57 months of imprisonment for each count to be substantively reasonable. Accordingly, we will affirm the District Court’s judgment. See Tomko, 562 F.3d at 568 (“[I]f the district court’s sentence is procedurally sound, we will affirm it unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.”).
. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
. On appeal, Mason complains that the District Court also overlooked other facts at sentencing. We do not agree. Facts like Mason's age, criminal history points, and strained finances were detailed in the Presen-tence Investigation Report, which the District Court carefully read and considered. Since Mason did not cite to these facts again at sentencing, the District Court needed to do nothing more. Tomko, 562 F.3d at 568 ("A sentencing court does not have to 'discuss and make findings as to each of the § 3553(a) factors if the record makes clear the court took the factors into account in sentencing.’ " (quoting United States v. Cooper, 437 F.3d 324, 329 (3d Cir.2006))). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471858/ | OPINION OF THE COURT
FUENTES, Circuit Judge:
Appellants Sat Bahl, William Browning, Jorge Puente, and Iretha Nolls appeal the decision of the District Court finding that they were not entitled to absolute or qualified immunity from Appellees’ procedural due process claim. The dispute in this case centers around the March 18, 2004 *786seizure by law enforcement officials of three minor children from Appellees’ home and actions taken by various Appellants théreafter concerning the custody of the children. At issue in this appeal is whether Appellants — two administrators and two caseworkers employed by Monroe County Children and Youth Services (“MCCYS”) — were entitled to absolute or qualified immunity in connection with the allegedly unconstitutional delay between the date when the children were seized and the date that a post-deprivation hearing was convened. The District Court concluded that Appellants were not entitled to absolute or qualified immunity. For the reasons that follow, we conclude that Appellants were entitled to qualified immunity, and will reverse.
I.
Because we write exclusively for the parties, we discuss the underlying facts and procedural history only to the extent necessary to resolve the issues on appeal. In March 2004, Robert and Lynn Jarovits resided in a home in Monroe County, Pennsylvania, along with their adult son, Erik Jarovits; their adult daughter, Gabrielle Jarovits; their two minor children, Matthew and Dedric Jarovits; and Gabrielle’s minor child, Marcella Parker. For a period leading up to March 2004, the Jaro-vits residence was under surveillance by various federal, state, and local law enforcement agencies because Erik Jarovits was selling crack cocaine in and out of the home. FBI agents arrested Erik Jarovits outside of a Monroe County restaurant on March 12, 2004, charging him with selling and distributing crack cocaine.
On the same day as the arrest, law enforcement officers sought and obtained a warrant to search the Jarovits residence, and they executed the warrant later that evening. The officers found and seized crack cocaine and marijuana in two rooms of the home during the search. Believing that the presence of drugs and the “filthy” state of the residence rendered the home unsuitable for the three minor Jarovits children, (App.154), police officers reported the matter to MCCYS.
On March 18, 2004, six days after the search, two employees of MCCYS, Appellant Jorge Puente and Nicole Mellwaine, accompanied by two police officers, inspected the Jarovits residence. Conditions in the home were squalid: the floors were covered with garbage, pornographic materials and animal feces; the refrigerator was full of rotting food; and the upstairs bathroom was unsanitary.1 Additionally, the inspecting officials discovered marijuana on a bedroom table. Based upon the conditions they observed in the Jarovits residence, as well as the fact of Erik Jarovits’ prior drug dealing activities in the home, Puente and Mellwaine determined that it was in the best interests of the minor children for the agency to take protective custody of the children and to initiate dependency proceedings in the Court of Common Pleas. Puente and Mellwaine, with the assistance of the two police officers accompanying them, removed the three minor children from the Jarovits residence and transported them to the MCCYS office.2
*787Appellees filed the Complaint in this action on November 18, 2004 in the United States District Court for the Middle District of Pennsylvania. Although Appellees asserted a wide variety of claims premised upon federal and state law against numerous defendants, the only claim at issue in this appeal (and the only claim we address herein) is their claim, asserted pursuant to 42 U.S.C. § 1983, that because more than seventy-two hours elapsed between the date when the children were seized and the date when the court convened a hearing to address the propriety of the seizure, MCCYS employees Bahl, Browning, Puente and Nolls violated Appellees’ procedural due process rights. In support of their due process claim, Appellees relied upon a provision of Pennsylvania law which provides that when a child has been taken into protective custody, “[a]n informal hearing shall be held promptly by the court or master and not later than 72 hours after the child is placed in detention or shelter care to determine ... whether to allow the child to remain in the home would be contrary to the welfare of the child ...” 42 Pa. Cons.Stat. Ann. § 6332(a) (West 2001 & Supp.2009).
Appellants moved for summary judgment as to the claims asserted in the Complaint, arguing with respect to Appellees’ due process claim that they were entitled to absolute and qualified immunity. In its October 10, 2007 opinion, the District Court held, inter alia, that Appellants were not entitled to absolute or qualified immunity and denied the motion for summary judgment with respect to the due process claim. Appellants subsequently filed this appeal, in which they contest only the District Court’s conclusion that they are not entitled to absolute or qualified immunity. “We have jurisdiction pursuant to the collateral order doctrine, see Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), and our review is plenary, see Larsen v. Senate of Cmwlth. of Pa., 154 F.3d 82, 87 (3d Cir.1998), cert. denied, 525 U.S. 1144, 119 S.Ct. 1037, 143 L.Ed.2d 45 (1999).” Rouse v. Plantier, 182 F.3d 192, 196 (3d Cir.1999).
II.
As we now explain, we conclude that Appellants were entitled to qualified immunity from Appellees’ due process claim, and that summary judgment as to that claim should have been entered in Appellants’ favor.3 The doctrine of qualified immunity “balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, — U.S. -, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009). In service of these dual interests, *788the doctrine immunizes government officials from liability and from suit “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).
A government official’s entitlement to qualified immunity turns on two considerations: whether the plaintiff has alleged that the defendant violated a constitutional right, and “whether the right that was violated was clearly established, or, in other words, ‘whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’ ” Curley v. Klem, 499 F.3d 199, 206-07 (3d Cir.2007) (quoting Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). The Supreme Court held in Pearson “that the Saucier procedure should not be regarded as an inflexible requirement,” and that courts may “exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed fmst in light of the circumstances in the particular case at hand.” Pearson, 129 S.Ct. at 813, 818.
Focusing on the second prong — whether it was objectively reasonable for Appellants to have believed that they acted lawfully under the circumstances they confronted in this case — we conclude that Appellants are entitled to qualified immunity from Appellees’ procedural due process claim. While this appeal was pending, a different panel of this Court addressed the very question at issue herein in Bayer v. Monroe County Children and Youth Services, 577 F.3d 186 (3d Cir.2009). As in the case before us, the plaintiffs in Bayer asserted a procedural due process claim based upon the fact that employees of MCCYS had taken custody of their children, but the post-deprivation hearing for the seizure did not take place within seventy-two hours.4 Id. at 191-92.
The Bayer Court held that “under the ‘clearly established’ prong of the Saucier test, defendants should be afforded qualified immunity with respect to [the plaintiffs’ procedural due process] claim.” Bayer, 577 F.3d at 192. The Court explained:
Here, it is undisputed that the children were taken into the custody of Monroe County Children and Youth Services at the end of the day on Friday and that [the MCCYS caseworker] forwarded the •relevant information to the agency’s solicitor on Monday morning, leaving the remainder of the day for the petition to be filed and hearing to be held within the prescribed 72-hour period. The agency’s solicitor did not file the petition until Tuesday morning, after that period had elapsed, but there is no indication that [the caseworker or her supervisor] ... was responsible for this delay. Furthermore, we have not found, and neither the able District Court nor plaintiffs have identified, anything in the record or law indicating that once [the caseworker] had forwarded the relevant information to the solicitor, either she or [her supervisor], in their respective capacities at Monroe County Children and Youth Services, had the authority or affirmative duty to intervene in the court’s scheduling of the subsequent dependency hearing. Nor would we impose such a duty. Accordingly, we agree with defendants that they could reasonably have believed they had discharged their responsibilities with respect to plaintiffs’ procedural due process rights by advancing the case to the *789point where a hearing could take place within the constitutionally prescribed time frame, and could reasonably have expected that their attorney and the court would hold the hearing in a timely fashion.
Id. at 193 (internal quotations and citations omitted). The Court likewise noted that “[t]o the extent plaintiffs point to ... provisions [of Pennsylvania statutory law] to substantiate a finding of a constitutional violation in this case or to demonstrate the objective unreasonableness of defendants’ conduct, such reliance is misplaced,” because “[fjederal constitutional standards rather than state statutes define the requirements of procedural due process for purposes of a § 1983 action alleging a Fourteenth Amendment violation.” Id. at 193 n. 6 (internal quotations and citations omitted).
Bayer is on all fours with the appeal before us, and it compels us to reverse the District Court’s conclusion that Appellants are not entitled to qualified immunity. See Pardini v. Allegheny Intermediate Unit, 524 F.3d 419, 426 (3d Cir.2008) (under Thúd Circuit Internal Operating Procedures, the holding of a previous panel in a precedential opinion is controlling upon the rulings of subsequent panels). Like the Bayer defendants, the MCCYS Appellants herein could reasonably have believed that they “discharged their responsibilities with respect to plaintiffs’ procedural due process rights by advancing the case to the point where a hearing could take place within the constitutionally prescribed time frame.” Bayer, 577 F.3d at 193. Indeed, whereas in Bayer the MCCYS defendants did not forward the case to the agency solicitor until nearly three days after the minors had been taken into custody, in the case before us, MCCYS filed the dependency petition for the Jarovits children the day after the children were taken into custody; that is, Appellants “advanced] the case to the point where a hearing could take place” even more swiftly than did the MCCYS employees in Bayer. Id. Moreover, as was the case in Bayer, there is nothing in the record before us to indicate that once Appellants had forwarded the relevant information to the agency solicitor and MCCYS had filed a petition in the Court of Common Pleas, any Appellant “had the authority or affirmative duty to intervene in the court’s scheduling of the subsequent dependency hearing.” Id. Finally, as in Bayer, whether Appellants “are liable under state law for violating ... provisions [governing the timeliness of post-deprivation child custody hearings] is not before us,” because “[fjederal constitutional standards rather than state statutes define the requirements of procedural due process” for a section 1983 claim. Id. at 193 n.6 (citation omitted). In sum, we conclude that whether or not Appellees have alleged a due process claim, “the right that was [allegedly] violated was [not] clearly established,” Curley, 499 F.3d at 207, meaning that Appellants are entitled to qualified immunity.
III.
For the foregoing reasons, we conclude that Appellants are entitled to qualified immunity from Appellees’ procedural due process claim. We will therefore reverse the District Court’s denial of Appellants’ motion for summary judgment as to that claim and remand for further proceedings consistent with this opinion.
. Appellees do not dispute these facts concerning the cleanliness of the residence, but they attribute the state of the home to the drug raid which had taken place six days before the MCCYS inspection.
. Appellants contend that the police removed the minors from the home, whereas Appellees maintain that Puente and Mellwaine were responsible for their removal. The parties' dispute over this fact does not impact our resolution of the issues addressed in this appeal.
. Because we find that Appellants were entitled to qualified immunity, we do not address their alternative argument that they were entitled to absolute immunity.
. The plaintiffs in Bayer were represented by the same attorney who represents Appellees, and both cases were assigned to the same District Court judge. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471860/ | OPINION
SMITH, Circuit Judge.
Marci J. Bittner appeals from the order of the United States District Court for the
Middle District of Pennsylvania granting the motion to dismiss filed by Snyder County and Michael Sholley, the District Attorney of Snyder County.1 For the reasons set forth below, we will affirm.
In April of 2007, Patrolman Chad Thomas of the Middleburg Borough Police Department hand-delivered a subpoena to Bittner, commanding her to appear and testify beginning May 29, 2007, at the criminal trial of her ex-husband. Thereafter, Bittner contacted District Attorney Sholley’s office to advise him of her need for transportation and child care. District Attorney Sholley’s office informed her that transportation and child care would be provided. Transportation was not provided, however, and Bittner failed to appear as commanded by the subpoena. As a result, a bench warrant was issued for Bittner’s arrest on May 29, 2007.
The following day, Patrolman Thomas arrested Bittner at her residence pursuant to the bench warrant, placed her in handcuffs, and transported her to the Snyder County Courthouse. After Bittner informed District Attorney Sholley that his staff had advised her that transportation would be provided, a petition was filed with the Prothonotary to withdraw the bench warrant. Within minutes, the Court of Common Pleas issued an order vacating the bench warrant. Bittner was transported to a relative’s home twenty miles away, rather than being returned to her own home, which was eighty-seven miles from the courthouse.
Thereafter, Bittner filed a complaint in the United States District Court for the *792Middle District of Pennsylvania against Snyder County and District Attorney Shol-ley in his official capacity. She alleged that Snyder County, acting through District Attorney Sholley, violated her Fourth, Fifth, and Fourteenth Amendment rights. She claimed that she had been deprived of the compensation a witness is entitled to under Pennsylvania law and that District Attorney Sholley breached his promise to provide her with transportation and child care in violation of her rights under the Fourth, Fifth and Fourteenth Amendments. Her Fourth Amendment rights were violated, according to Bittner, when she was arrested without probable cause and excessive force was used in handcuffing her. She also averred that the failure to provide her with a hearing both before the bench warrant was issued and following her arrest constituted a violation of her right to due process. In addition, she averred that District Attorney Sholley’s failure to provide her with transportation and child care, as promised, constituted a violation of a special duty that was breached when she was not returned to her own home. Snyder County and District Attorney Sholley filed a 12(b)(6) motion to dismiss.
The District Court granted the motion to dismiss. It noted that Bittner had represented that her Complaint did not assert any state law claims, that she had not sued District Attorney Sholley in his individual capacity, and that she was asserting claims against him in only his official capacity. Nonetheless, the District Court analyzed Bittner’s claims as if she had sued District Attorney Sholley in his individual capacity. Bittner’s claims based on the events that occurred pre-arrest failed as a matter of law, according to the District Court, because Bittner had not alleged a constitutional violation. The claims arising from Bittner’s arrest were dismissed because of District Attorney Sholley’s absolute prose-cutorial immunity. The District Court dismissed Bittner’s claims based on the post-arrest conduct on the ground that District Attorney Sholley had qualified immunity.
The claims against the County alleged liability on the basis that the County, acting through District Attorney Sholley, either established and followed a policy or custom that deprived Bittner of her constitutional rights, or it failed to train and supervise its employees, thereby resulting in a violation of her constitutional rights. The Court explained that because the claims against Sholley could not be maintained, the claims against the County were also deficient.
Bittner filed a timely appeal. She reiterates that Sholley was sued solely in his official capacity as a policy maker for Snyder County and that the District Court erred by failing to properly evaluate her municipal liability claim. According to Bittner, the District Court “implicitly decided ... that the District Attorney was acting as an agent for the Commonwealth, pursuing his prosecutorial functions, and was therefore immune under the Eleventh Amendment.”
We appreciate Bittner’s argument. It does appear that the District Court failed to independently analyze her municipal liability claims. See Carswell v. Borough of Homestead, 381 F.3d 235, 244 (3d Cir.2004). The Supreme Court has explained that municipal liability under § 1983 may attach even though the individual may be protected by an immunity. Owen v. City of Independence, 445 U.S. 622, 638, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980); Collins v. City of Harker Heights, 503 U.S. 115, 122, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). In this case, the claim against District Attorney Sholley in his official capacity is a claim against the municipal entity. Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). It is well settled that before a municipality may be found liable under *793§ 1983, there must be a constitutional violation. See Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The problem is that Bittner’s complaint fails to allege that she was deprived of her constitutional rights.2
We agree with the District Court that Bittner’s pre-arrest claims fail to allege a constitutional violation. Because Bittner was present in the courthouse pursuant to a bench warrant, and not in response to the subpoena, she had no right to receive witness compensation and mileage under Pennsylvania’s statutory law. Accordingly, there is no ground for a due process claim based on a deprivation of property. Nor is there any constitutional right to transportation and the child care she was allegedly promised by the District Attorney’s office.
The claims arising from Bittner’s arrest also fail. “The simple fact of nonappearance provided the government with probable cause to apply for a bench warrant[.]” In re Grand Jury Proceedings, 658 F.2d 211, 214 (3d Cir.1981); see also Luches v. County of Hennepin, Minnesota, 415 F.3d 936, 939 (8th Cir.2005).3
Bittner also claims that she was deprived of her due process rights because she was not afforded a hearing prior to the issuance of the bench warrant or following her arrest. Neither this court nor the Supreme Court has held that there is a right to be heard before the issuance of a warrant. With respect to her claim that she was deprived of her right to a hearing post-arrest, we fail to see a violation of that right inasmuch as the arrest warrant was vacated before a hearing could be conducted.
Finally, we agree with the District Court that Bittner’s state created danger claim, which presumes there was a special duty to provide her with transportation to her home once she was arrested, fails as a matter of law. Her averments, even accepted as true, do not plausibly suggest the elements of a viable state created danger claim. See Bright v. Westmoreland County, 443 F.3d 276, 281 (3d Cir.2006). Accordingly, that claim does not survive the County’s 12(b)(6) motion. Iqbal, 129 S.Ct. at 1949.
In sum, we will affirm the judgment of the District Court. A necessary predicate for a § 1983 municipal liability claim is a constitutional violation. The complaint, however, did not provide sufficient factual matter to establish a reasonable inference that Bittner’s constitutional rights had been violated. Accordingly, her complaint was properly dismissed. Id.
. The District Court exercised jurisdiction under 28 U.S.C. §§ 1331, and 1343. Appellate jurisdiction exists under 28 U.S.C. § 1291. We exercise plenary review over an order granting a motion to dismiss. In order to "survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
. We decline to address Bittner’s contention that the District Court implicitly decided that her claims were barred by the Eleventh Amendment inasmuch as the District Court does not mention it. We may affirm, however, on any basis supported by the record. Nicini v. Morra, 212 F.3d 798, 805 (3d Cir.2000) (en banc); see also Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 82 L.Ed. 224 (1937) ("In the review of judicial proceedings the rule is settled that, if the decision below is correct, it must be affirmed, although the lower court relied upon a wrong ground or gave a wrong reason.”).
. In addition to alleging a violation of her Fourth Amendment right not to be arrested without probable cause, Bittner also alleged that she was subjected to excessive force in being handcuffed. On appeal, Bittner submits, not that excessive force was used, but that her rights were violated because she was handcuffed even though she was not a criminal defendant. Viewed in this light, her claim is simply another way of alleging that she was arrested without probable cause. That claim, however, fails as a matter of law since Patrolman Thomas properly arrested Bittner under the bench warrant. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471862/ | OPINION
SLOVITER, Circuit Judge.
Appellant Carlos Peralta appeals the District Court’s decision not to grant him a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). We will affirm.
*795I.
In July 2007, Peralta pled guilty to possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1), and illegal re-entry into the United States by an aggravated felon, in violation of 8 U.S.C. § 1326(b)(2). At Peralta’s sentencing hearing in December 2007, the District Court adopted, without objection, the Pre-sentence Report (“PSR”) prepared by the Probation Office.
According to the PSR, Peralta was responsible for 114.22 grams of cocaine base and 99.36 grams of cocaine powder. Under the Sentencing Guidelines applicable at that time,1 Peralta faced a base offense level of thirty-two based on this amount of drugs. Peralta’s immigration offense had no impact on his offense level. The PSR recommended a three-level reduction for acceptance of responsibility, and, combined with his criminal history category of I, Peralta therefore faced a Guidelines sentence of 87 to 108 months imprisonment.
After hearing argument from both parties, the District Court imposed a sentence of sixty-four months imprisonment. The Court recognized that, under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), it could grant a variance to account for the crack-powder sentencing disparity, and decided that such a variance was appropriate here. The Court also noted that the Sentencing Commission had issued Amendment 706 to the Guidelines to reduce the offense level for certain crack cocaine offenses by two levels. The Court announced that it would apply such a reduction to Peralta’s sentence even though it was outside the scope of Amendment 706. See U.S.S.G. App. C, Amend. 706 (Nov. 1, 2007). The Court also determined that the sentence balanced Peralta’s status as a low-level dealer and his poor health against his record of multiple illegal entries into the United States and prior drug offenses.
Peralta did not appeal his conviction or sentence. However, Peralta subsequently moved for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2), which permits a district court to reduce a sentence that was “based on a sentencing range that has subsequently been lowered by the Sentencing Commission ..., if such reduction is consistent with applicable policy statements issued by the Sentencing Commission.” In support of his motion, Peralta relied upon Amendment 715, which was made retroactive by Amendment 716. See U.S.S.G. App. C., Amends. 715, 716 (May 1, 2008). Pursuant to Amendment 715, the base offense level for Peralta’s drug offense would be reduced to thirty, and he would face an amended Guidelines range of seventy to eighty-seven months imprisonment. Peralta seeks a new sentence of fifty-two months imprisonment, i.e., a variance from the amended Guidelines range equivalent to the variance granted by the District Court below his original Guidelines range. Appellant’s Br. at 9.
The District Court denied the motion for a sentence reduction. It held that Peralta “was given the benefit of the two level reduction authorized by Amendment 715; the sentence was below the advisory guideline range even after the two level reduction ...; and the Court finds [Peralta] is not eligible for any additional reduction in his sentence as it already took into account the crack cocaine amendments.” App. at 3. Peralta timely appealed.2
*796II.
Although his original sentence “already took into account the crack cocaine amendments,” Peralta still argues that the District Court erred in denying his motion for a sentence reduction. App. at 3. We disagree.
As noted above, the District Court anticipated Amendment 715 and applied a two-level reduction to the offense level for Peralta’s drug offense. Thus, Peralta, in essence, already received the benefit of Amendment 715 in his original sentence. That is all Peralta is entitled to under § 8582(c)(2). See U.S.S.G. § lB1.10(b)(l) (“In determining whether, and to what extent, a reduction in the defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement is warranted ... the court shall substitute only the [applicable] amendments ... for the corresponding guideline provisions that were applied when the defendant was sentenced.... ”).
Further, the District Court granted Peralta a downward variance pursuant to Booker and Kimbrough and sentenced him to sixty-four months imprisonment, i.e., below both the original and amended Guidelines ranges. Under the Sentencing Guidelines, “if the original term of imprisonment constituted a non-guideline sentence determined pursuant to 18 U.S.C. § 3553(a) and [Booker ], a further reduction generally would not be appropriate.” U.S.S.G. § lB1.10(b)(2)(B). Contrary to Peralta’s arguments to this court, “[nothing in Booker purported to obviate the congressional directive in § 3582(c)(2) that a sentence reduction pursuant to that section be consistent with Sentencing Commission policy statements.” United States v. Doe, 564 F.3d 305, 314 (3d Cir.2009).
Accordingly, the District Court did not abuse its discretion in rejecting Peralta’s request for a sentence reduction. Peralta has already received the benefit of Amendment 715, and, in any case, the Sentencing Guidelines make clear that a sentence reduction is generally not appropriate where a defendant, like Peralta, received a downward variance in his or her original sentence.
III.
For the above-stated reasons, we will affirm the District Court’s order denying a sentence reduction.
. The PSR was calculated under the 2007 version of the Guidelines.
. The District Court had jurisdiction pursuant to 18 U.S.C. §§ 3231 and 3582. We have jurisdiction under 28 U.S.C. § 1291 and review a district court’s "decision whether to grant or deny a defendant's motion to reduce sentence under § 3852(c)(2) for abuse of discretion.” United States v. Mateo, 560 F.3d 152, 154 (3d Cir.2009). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471864/ | OPINION
PER CURIAM.
Deborah Morris filed this pro se petition for a writ of mandamus pursuant to 28 U.S.C. § 1651 seeking an order compelling the District Court to modify her sentence of imprisonment to home confinement. For the reasons that follow, we will deny the petition.
Morris is currently serving a 60-month sentence of imprisonment at the Alderson Federal Prison Camp in West Virginia for multiple fraud convictions arising from a scheme in which she obtained reimbursements from the Medicare program for clinical services never performed. The United States District Court for the Eastern District of Pennsylvania imposed the sentence in 2007. Morris’ counseled, direct appeal of her conviction and sentence is currently pending before this Court (C.A. No. 07-4258).
In August 2008, Morris filed a motion asking the District Court to suspend her sentence of imprisonment and modify it to home confinement. She claimed she was receiving inadequate medical care for numbness, dizziness, and leg weakness and that the Federal Bureau of Prisons would “seek retaliatory measures” against her by moving her to a medical facility distant from her family and counsel. The District Court denied the motion. About six months later, in March 2009, Morris filed a second motion seeking home confinement on the basis that it would enable her both to receive the medical care she wants and to work so that she could begin paying the restitution portion of her sentence. The District Court denied this motion on March 23, 2009, 2009 WL 789681, on the basis that it lacked jurisdiction to modify her sentence, whose implementation is now under the authority and discretion of the Bureau of Prisons. Morris filed her petition for a writ of mandamus with this Court on May 13, 2009.
Mandamus is a drastic remedy available only in the most extraordinary of circumstances. See In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir.2005). To demonstrate that mandamus is appropriate, a petitioner must establish that she has a “clear and indisputable” right to the issuance of the writ and that she has “no other adequate means” to obtain the relief desired. Madden v. Myers, 102 F.3d 74, 79 (3d Cir.1996).
Morris seeks to compel the District Court to modify her sentence, which was imposed almost two years ago. Once a term of imprisonment has been imposed, a district court has the authority to modify it only in limited circumstances. Under 18 U.S.C. § 3582(c), those circumstances are: (1) when the Director of the Bureau of *798Prisons moves for a reduction in the term of imprisonment on the basis of what is sometimes called the “compassionate relief’ provisions; (2) when Federal Rule of Criminal Procedure 35 permits such modification; or (3) when the sentencing range under which a defendant was sentenced has subsequently been lowered by the Sentencing Commission. None of these circumstances are present in this case. The Director of the Bureau of Prisons has not moved for a reduction in Morris’ term of confinement and Morris does not seek a reduction based on a change in the Sentencing Guidelines. Finally, Rule 35 provides no authority for the District Court to grant Morris’ request to modify her sentence because more than seven days have passed since sentencing. See United States v. Higgs, 504 F.3d 456, 463 (3d Cir.2007) (holding that the seven-day time requirement in Rule 35(a) is jurisdictional).
Once a sentence is imposed, the Bureau of Prisons is responsible for implementing it, including the designation of the place of imprisonment. See 18 U.S.C. §§ 3586, 3621(b). The Bureau has in place an administrative remedy program, as well as procedures for requesting compassionate release and criteria for home confinement. See 28 C.F.R. §§ 542.10 et seq., 571.60 et seq.; U.S. Dep’t. of Justice, Fed. Bureau of Prisons, Program Statement 7320.01: Home Confinement (1995). Morris apparently believes that this system is inadequate, although it does not appear from her filings before this Court and the District Court that she has requested home confinement from the Bureau of Prisons.1 Furthermore, her mere belief does not alter the fact that the District Court lacks authority to modify her sentence or that other avenues for redress exist. Because Morris has not shown a clear and indisputable right to issuance of the relief she seeks, we will deny her petition for a writ of mandamus.
. The administrative remedy request forms Morris attached to her first motion to modify her sentence show that she asked only “to be seen by a neurologist locally or by my private neurologist.” | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471866/ | OPINION
AMBRO, Circuit Judge.
John Gregory Lynch appeals the sentence imposed on him by the District Court after he pled guilty to conspiring to employ a prohibited person, contrary to 29 U.S.C. § llll(a)-(b) and in violation of 18 U.S.C. § 371. He claims that the Court erred in (1) enhancing his sentence based on his abuse of a position of trust and participation in an embezzlement scheme, and (2) increasing his amount of restitution. We affirm the Court’s sentence enhancements, but vacate its increased restitution order.
I.
From 1999 until 2002, Lynch served as legal counsel to the Professional Employee’s Guild (“PEG”), advising it on various matters, including maintenance of its employee welfare benefit plan. He also acted from 1999 until 2005 as the PEG’S exclusive insurance broker, negotiating coverage rates for its members.
As the PEG’s attorney and broker, Lynch committed two wrongs. First, he paid Jack Kramer $70,260 for consulting services rendered to the PEG even though he knew Kramer had a prior embezzlement conviction that barred him from working with a union or employee benefit *800plan. Second, Lynch conspired with Kramer and Joseph Crompton, the secretary and treasurer of the PEG, to embezzle funds from the PEG through payment of fictitious administrative services fees. To further this conspiracy, Lynch drafted a fraudulent letter, which included the forged signature of an insurance company representative, directing the PEG to pay him $296,000 in fees. He then deposited this sum in a personal account and later transferred it to Kramer.
In 2006, federal authorities charged Lynch with one count of conspiring to employ a prohibited person, and one count of conspiring to embezzle funds from a labor organization. After negotiations, Lynch agreed to plead guilty to the count of conspiracy to employ a prohibited person.
Lynch’s plea agreement assigned him a Sentencing Guidelines calculation of 12, using a base offense level of 6 and assigning an 8-level increase for losses in excess of $70,000 and a 2-level reduction for acceptance of responsibility. See U.S.S.G. §§ 2B1.1(b)(1)(E) & 3El.l(a). The agreement also committed him to pay $70,260 in restitution.
Before Lynch appeared for sentencing, the United States Probation Office prepared a presentence report. The report recommended a 12-level increase in Lynch’s base offense level, instead of the 8-level increase agreed to in the plea agreement, because his embezzlement of PEG funds was “relevant conduct” that increased the amount of loss from his crimes to more than $200,000 and triggered U.S.S.G. § 2Bl.l(b)(l)(G). The Probation Office also recommended a 2-level increase under U.S.S.G. § 3B1.3 for Lynch’s abuse of a position of trust and a 1-level reduction under U.S.S.G. § 3El.l(b) for his timely notification of intent to plead guilty. In sum, it advised assigning Lynch a total offense level of 17 and a criminal history category of I, yielding a Sentencing Guidelines range of 24 to 30 months’ imprisonment. It also suggested that Lynch pay restitution of $366,000 to cover the $296,000 he embezzled as well as the over $70,000 he paid to Kramer.
The District Court largely accepted the recommendations of the Probation Office. After considering Lynch’s objections to the presentence report and the sentencing factors set out in 18 U.S.C. § 3553(a), it sentenced Lynch to 24 months’ imprisonment, at the bottom of the Guidelines range, and ordered him to pay $296,000 in restitution. In doing so, it considered Lynch’s embezzlement activities as relevant conduct and ruled that Lynch had abused a position of trust within the PEG.
Lynch responded by moving for a sentence correction pursuant to Federal Rule of Criminal Procedure 35. He claimed that the Court had not adequately addressed the sentencing factors of 18 U.S.C. § 3553(a) or the applicability of U.S.S.G. § 5K2.20, which permits a downward departure from the sentencing range for aberrant behavior. At a hearing on his motion, Lynch further claimed that the PEG was a “sham union,” that he legitimately earned the $296,000 in fees paid on the forged letter, and that he deserved a separate hearing to challenge the Court’s amount of loss ruling. The Court denied Lynch’s motion. He now appeals.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
We review de novo the District Court’s interpretation of the Sentencing Guidelines and consider findings of fact for clear error. See United States v. Wood, 526 F.3d 82, 85 (3d Cir.2008). We review the substantive reasonableness of the Court’s as*801signed sentence for abuse of discretion. Id.
III.
Lynch claims that the District Court erred in: (1) enhancing his sentence on the basis of the amount of loss related to his charged embezzlement offense; (2) increasing his sentence because he abused a position of trust; and (3) ordering him to pay an amount of restitution greater than that stated in his plea agreement. We reject Lynch’s claims that the Court misapplied sentence enhancements for amount of loss and abuse of a position of trust, but we agree that he should not owe more in restitution than the loss agreed to in his plea agreement.
A.
Amount of loss is a “specific offense characteristic” for property offenses determined on the basis of the harm caused by the defendant’s “relevant conduct.” U.S.S.G. §§ lBl.S(a) & 2B1.1(b)(1). Relevant conduct includes “all acts ... committed by the defendant ... that occurred during commission of the offense of conviction” and “all harm that results from [such] acts.” Id. at § lB1.3(a)(l)-(3). For “offenses ... requiring] grouping of multiple counts,” relevant conduct also includes “all acts ... that were part of the same course of conduct or common scheme or plan as the offense of conviction.” Id. at §§ lB1.3(a)(2) & 3D1.2(d). Relevant conduct is established by a preponderance of the evidence, see United States v. Grier, 475 F.3d 556, 568 (3d Cir.2007) (en banc), and may be “[c]onduct that is not formally charged or is not an element of the offense of conviction.” U.S.S.G. § 1B1.3 cmt. background; see also United States v. Tidwell, 521 F.3d 236, 250 n. 9 (3d Cir.2008).
Lynch contends that the District Court erred by considering as relevant conduct his receipt of $296,000 in fees from the PEG. He specifically claims that the Court failed to find by a preponderance of the evidence that, in seeking and accepting the $296,000 in fees, he “acted knowingly, willfully, unlawfully, and with fraudulent intent to deprive [the] PEG of its money.” Lynch’s Br. at 14 (internal citations omitted). He also asserts that the Court improperly denied him a hearing to show his innocence on the embezzlement charge. He is wrong on all points.
The District Court explained at the sentencing hearing why Lynch’s receipt of the $296,000 was relevant conduct:
[An offense] level of 17 is ... reflected in th[e presentence] report. I find ... that that is the appropriate level, and I say that for several reasons. Specifically, one of the issues that’s raised is whether that was the amount of loss. The amount of loss, certainly -with regard to count two of the indictment, was the $71,000 paid to Mr. Kramer.... But in the first count of the complaint of the indictment, it discusses the $296,000 that was obtained. And the reason that I find that that has to be considered as relevant conduct under the sentencing guidelines ... is because in looking at the presentence report, and in particular paragraph 21, it goes into some further detail as to how this $296,000 was obtained. And that is the part that was extremely troubling for the [C]ourt.
App. at 63-65. The Court also rejected Lynch’s assertion that he did not accept the fees unlawfully because the PEG was a “sham union”:
[Y]ou cannot come in and argue after the fact that it’s not a real, legitimate union. It’s a family. It was no big deal. Nobody was hurt. It doesn’t make the offense less offensive because you thought it was a family organization.... The conduct is what is being punished, and that is what I felt was appropriate.
*802Id. at 92-94. These passages indicate that the Court believed a preponderance of the evidence established that Lynch’s acquisition of the $296,000 in fees was relevant conduct for sentencing purposes.
The Court’s adoption of the presentence report’s characterization of the $296,000 fee payment as relevant conduct also was justified by Lynch’s ineffectual objection to it. “The party challenging the [presen-tence] report ... has the burden of production, under Rule 32(c), to come forward with evidence that tends to indicate that the report is incorrect or incomplete.” United States v. McDowell, 888 F.2d 285, 291 n. 1 (3d Cir.1989); see also United States v. Jimenez, 513 F.3d 62, 86 (3d Cir.2008). Lynch failed to carry this burden when he stated prior to sentencing merely that he had “a difference of opinion” concerning the legality of the $296,000 fee payment and offered no evidence to rebut the embezzlement charge stemming from it. Cf. United States v. Artley, 489 F.3d 813, 821 (7th Cir.2007) (“When a defendant has failed to produce any evidence calling the report’s accuracy into question, a district court may rely entirely on the presentence report.”).
Lynch’s faulty objection to the presen-tence report also was not curable through his postsentence Rule 35 motion or his evidentiary hearing request. A court’s “authority to correct a sentence under Rule 35(a) was intended to be very narrow and extends only to those cases where an obvious error has occurred in the sentence.” United States v. Washington, 549 F.3d 905, 915 (3d Cir.2008). It does not permit the reevaluation of factual determinations based on new objections. Moreover, because Lynch did not request an evidentiary hearing for his relevant conduct determination until after sentencing, he waived his claim to any such right. See United States v. Matthews, 773 F.2d 48, 51 (3d Cir.1985) (holding that where a “defendant has an adequate opportunity to examine and correct controverted information and request an evidentiary hearing,” but fails to do so before sentencing, “the error is counsel’s[,] not the court’s”).
B.
Lynch also argues that the District Court’s 2-level enhancement for abuse of a position of trust erred because “he did not abuse the trust of PEG members, but had instead worked to provide them with all that they had bargained for.” Lynch’s Br. at 13. In reviewing this issue, we have no doubt that Lynch “abused a position of trust in a manner that significantly facilitated the commission or concealment of [his] offense.” U.S.S.G. § 3B1.3.
His role as counsel and insurance broker to the PEG placed Lynch in a “position of trust” because it allowed him to “commit a difficult to detect wrong” by using his degree of authority at the PEG and its members’ reliance on his integrity. United States v. Hoffecker, 530 F.3d 137, 201 (3d Cir.2008); see also U.S.S.G. § 3B1.3 n. 5(A) (noting that a person holds a position of trust in a benefit plan if he “exercises any discretionary authority or control in respect to the management of such plan”). Lynch “abused that trust in a way that significantly facilitated his crime” by paying Kramer for services that Kramer was prohibited from providing and by embezzling funds from PEG’S holdings. United States v. Sherman, 160 F.3d 967, 969 (3d Cir.1998).
C.
Lynch’s final assertion is that the District Court committed plain error in assessing a restitution award of $296,000 in contravention of his plea agreement and based only on his relevant conduct. Plain error is the appropriate standard of review because Lynch failed to preserve his objection to the Court’s restitution order. See *803United States v. Olano, 507 U.S. 725, 731-33, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
The Mandatory Victims Restitution Act of 1996 (“MVRA”), 18 U.S.C. § 3663A, states that “[t]he court shall order ... restitution to the victim of the offense ... [and], if agreed to by the parties in a plea agreement, restitution to persons other than the victim of the offense.” Under this statute, restitution is allowable “only for the loss caused by the specific conduct that is the basis of the offense of conviction.” Hughey v. United States, 495 U.S. 411, 420, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990); see also United States v. Akande, 200 F.3d 136, 138 (3d Cir.1999) (“The conduct underlying the offense of conviction ... stakes out the boundaries of the resti-tutionary authority.”). Where, as here, the conviction is the result of a plea agreement, “we look to the plea agreement and colloquy” to determine what is the “offense of conviction.” Akande, 200 F.3d at 142.
Lynch’s plea agreement describes his offense as “conspiracy to employ a prohibited person” and notes that “Lynch agrees to make full restitution for losses resulting from the offense of conviction or from the scheme, conspiracy, or pattern of criminal activity underlying that offense, to the Professional Employees Guild Welfare Fund in the amount of $70,260.” App. at 29. The Government argues that these terms are broad enough to authorize the District Court’s restitution order. It specifically claims that, by passing the $296,000 onto Kramer, Lynch brought his charged embezzlement conduct within “the scheme, conspiracy, or pattern of criminal activity underlying [his] offense.” See Gov’t’s Br. at 39.
We do not read the plea agreement so broadly. “Although judges normally may use any information they possess to enhance a sentence, ‘restitution is a special case,’ because the statutes limit the losses caused by the offense of conviction.” Akande, 200 F.3d at 143 (quoting United States v. Kane, 944 F.2d 1406, 1415 n. 7 (7th Cir.1991)). In this case, the offense of conviction was the illegal employment of Kramer as a consultant, and the plea agreement unambiguously sets the “full restitution” amount at $70,260. App. at 29. Thus, even though Lynch’s passing of the $296,000 in fraudulent fees to Kramer may be “factually connected” to his conspiracy to employ Kramer, it is not here (where a plea agreement sets the amount of restitution loss) legally relevant for purposes of the restitution order.
However, that the District Court erred in ordering Lynch to pay $296,000 in restitution — as opposed to the $70,260 stipulated to in the plea — is not itself enough for us to vacate the Court’s restitution order. Because Lynch failed to object to the order, we can only grant that relief if we believe that the error was plain and that it adversely affected both Lynch’s “substantial rights” as well as the “fairness, integrity, or public reputation of [the] judicial proceedings.” United States v. Polk, 577 F.3d 515 (3d Cir.2009).
That standard is met in this case. The Court’s error was plain because, as explained above, § 3663A only allows restitution to persons other than the victims of the offense of conviction “if agreed to by the parties in a plea agreement,” and the plea agreement plainly did not contemplate a restitution award beyond the $70,260 associated with the offense of conviction. That error affected Lynch’s “substantial rights” in that it resulted in his being subject to a much higher restitution amount. See United States v. Evans, 155 F.3d 245, 251 (3d Cir.1998) (explaining that, “[i]n most cases, an error affects substantial rights if it is prejudicial”). And, finally, insofar as the error resulted in a sentencing order “not authorized by law,” it also “seriously affect[ed] the fair*804ness, integrity, and reputation of the proceedings.” Id. at 252. Thus, Lynch is entitled to the relief requested despite failing to preserve the objection.
* * * * * *
Lynch “lost [his] path” and engaged in “something that all stems from greed.” Id. at 65. He violated the trust placed in him by PEG members and pursued a course of action that he knew was wrong. We accordingly hold that the District Court’s sentence enhancements for amount of loss from relevant conduct and abuse of a position of trust were appropriate and reasonable. Because the Court’s restitution order required payment for acts beyond the specific conduct supporting the offense of conviction, we vacate it and remand with instructions to enter a new restitution order covering only the $70,260 stipulated to in the plea agreement. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471868/ | OPINION
PER CURIAM.
In February 2009, Reynaldo Rosario filed this pro se mandamus petition seeking an order directing the District Court to rule on a civil rights complaint he filed on or about August 22, 2000 in the United States District Court for the District of New Jersey. For the reasons that follow, we will deny the petition.
I.
In his mandamus petition, Rosario alleges that when he first filed his civil rights complaint, he received a Notice of Allocation and Assignment from Magistrate *805Judge Susan Davis Wigenton advising him that the case was assigned to District Judge Alfred M. Wolin. Rosario alleges that Judge Wolin erroneously consolidated his civil rights complaint with a § 2255 motion that he separately filed on August 30, 2000 and gave both matters the same docket number (2:00-cv-04239). Rosario states that, as a result, no action has been taken on his civil rights complaint in nine years, despite his attempts through “due diligence” to notify the court of this docketing error so that his matter could proceed. As proof, Rosario attaches to his petition for writ of mandamus various exhibits, including a copy of the allegedly filed civil rights complaint, which shows a date stamp of August 22, 2000 and docketing number of “00-cv-04289” typed into the caption line.
This Court requested the Clerk of the Court for the District of New Jersey to respond to Rosario’s allegations and attached documentation. After a careful review of the docket, the Clerk’s Office asserted that this document was never submitted for filing in case 00-cv-04239. This conclusion was based on the following: (1) there is no evidence of the civil rights complaint in the docket for case number OO-cv-04239, and no mention of the complaint until 2003, which was after Rosario’s § 2255 motion was denied by the District Court, the denial was affirmed by the Court of Appeals, and cer-tiorari was denied by the Supreme Court; (2) there is no order of consolidation and no notation on the docket of 00-cv-04239 that there is a related case; (3) the Clerk’s Office does not, and never did, type docket numbers onto complaints; and (4) the “00AUG 22, MAIL ROOM, NEWARK, NJ 07102” date stamp that appears on Rosario’s civil complaint is different from the date stamp used by the Newark vicinage Clerk’s Office. The Clerk’s Office also noted that in an Order dated June 5, 2009, the District Court granted Rosario leave to file a civil complaint based on the allegations he describes in his mandamus petition.
II.
Mandamus is a drastic remedy available only in the most extraordinary of circumstances. See In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir.2005). To demonstrate that mandamus is appropriate, a petitioner must establish that he has “no other adequate means” to obtain the relief and that he has a “clear and indisputable” right to issuance of the writ. Madden v. Myers, 102 F.3d 74, 79 (3d Cir.1996). Based on the response by the Clerk’s Office, it is not “clear and indisputable” that Rosario properly filed his civil rights complaint in the District Court in August 2000, let alone that he has a right to the relief he seeks.
Accordingly, we will deny the petition for writ of mandamus. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471870/ | OPINION
PER CURIAM.
Angel M. Pinet appeals from the order of the United States District Court for the District of New Jersey denying his habeas petition filed pursuant to 28 U.S.C. § 2241. We will affirm.
Pinet is currently serving a 360-month federal imprisonment term imposed in December 1998. In addition to the imprisonment term, the sentencing court assessed a $2,000.00 fine to be paid immediately. In 2005, Pinet entered into what he calls a “duress agreement” with the Bureau of Prisons (“BOP”) under the Inmate Financial Responsibility Program (“IFRP”), whereby he agreed to make quarterly payments to satisfy his fine. On May 7, 2007, Pinet refused to make any further payments while incarcerated. Consequently, the BOP placed him on “IFRP Refuse” status. Pinet proceeded to pursue administrative remedies and appeals, asserting that the sentencing court should set the payment schedule for the imposed fine, and that the BOP lacked authority to do so. Ultimately, Pinet was unsuccessful in obtaining administrative relief.
In June 2008, Pinet filed a habeas petition under 28 U.S.C. § 2241, maintaining that the BOP unlawfully established a schedule for paying the fine when that duty belonged to the sentencing court. He alleged that despite the BOP’s characterization of the IFRP as a voluntary program, his refusal to participate results in the loss of certain benefits relating to, as examples, his prison employment wages, commissary spending limits, and housing status. Upon consideration of the parties’ submissions, the District Court denied the section 2241 petition, concluding that the BOP was not precluded from setting a payment schedule via the IFRP for Pinet to pay his criminal fine. Pinet appeals. We have appellate jurisdiction under 28 U.S.C. § 1291.
At the outset, we note that because Pi-net challenges the execution of his sentence by claiming that the BOP acted unlawfully in establishing a payment schedule regarding the imposed fine, the claim falls squarely within the purview of a section 2241 petition. See Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir.2001). Pinet first argues that the District Court misconstrued his habeas petition as a challenge to the constitutionality of the IFRP. We disagree. The District Court *807did reaffirm the constitutionality of the IFRP, citing James v. Quinlan, 866 F.2d 627 (3d Cir.1989). However, in denying habeas relief, it duly considered and rejected Pinet’s claim that the BOP acted unlawfully in setting a payment schedule to satisfy the fine.
Pinet’s main argument is that 18 U.S.C. § 3572(d) precludes the sentencing court from delegating the task of setting a payment schedule for fines. In support, Pi-net relies on the language of the statute allowing the sentencing court to provide for installment payments, and that the sentencing court (not the BOP) is to establish the schedule and period for payment. See 18 U.S.C. § 3572(d)(1), (2). However, section 3572(d)(1) also provides that an imposed fíne shall be paid “immediately” unless the sentencing court directs installment payments in the interest of justice. There is no dispute here that the sentencing court ordered Pinet to pay the fine immediately. No payment schedule was at issue, and no delegation of judicial function occurred.1 Contrary to Pinet’s assertions, nothing in section 3572(d)’s language precludes the BOP under its IFRP regulations from setting a payment schedule to satisfy a fine that was due to be paid immediately.
Pinet also cites our decision in United States v. Coates, 178 F.3d 681, 684 (3d Cir.1999), emphasizing our statement that section 3572(d)(1) applies to all monetary penalties, including fines and orders of restitution. However, we also highlighted in Coates the distinction between section 3572(d)(1) and the affirmative requirement for the sentencing court to set a payment schedule under the Mandatory Victims Restitution Act. Since Coates, we decided United States v. Corley, 500 F.3d 210, 226-27 (3d Cir.2007), where we held that a sentencing court impermissibly delegates its authority to the BOP when, knowing that the defendant was financially unable to make immediate restitution payment, it orders payments due immediately but to be made via the IFRP. The holdings of Coates and Corley are based on 18 U.S.C. § 3664(f)(2), which directs the sentencing court to establish a restitution payment schedule taking the defendant’s finances into consideration. In Pinet’s case, he is not challenging a restitution order. There is no analogous statutory provision governing the imposition of fines that requires the sentencing court to set payment schedules -with consideration of the defendant’s finances.
We will affirm the District Court’s order denying Pinet’s section 2241 petition.
. Pinet misplaces his reliance on cases such as United States v. Foote, 413 F.3d 1240 (10th Cir.2005); United States v. Workman, 110 F.3d 915 (2d Cir.1997); and United States v. Miller, 77 F.3d 71 (4th Cir.1996). In each of these cases, the sentencing courts ordered the defendants to pay fines in installments and expressly delegated the task of establishing payment schedules, unlike the situation in Pinet’s case. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8472108/ | PER CURIAM:
Marquis B. West, an inmate at the Georgia State Prison (“GSP”) proceeding pro se, appeals the grant of a motion to dismiss as to Defendant Higgins and summary judgment as to the other appellees, in his 42 U.S.C. § 1983 civil rights case. West argues that the court erred in finding that he had not exhausted his administrative remedies as to his claim that Higgins retaliated against him. Additionally, West argues that the evidence showed that the defendants violated his due process rights and were deliberately indifferent to his mental health needs when they downgraded his mental health status and placed him in the general population where he harmed himself.1
DISCUSSION
A. Higgins ’ Motion to Dismiss
We review de novo a district court’s dismissal of a § 1983 action for failure to exhaust available administrative remedies. Johnson v. Meadows, 418 F.3d 1152, 1155 (11th Cir.2005). When consid*425ering whether to dismiss a § 1983 complaint, all facts set forth in the complaint are to be accepted as true and consideration is limited to the pleadings and exhibits attached to it. Thaeter v. Palm Beach County Sheriff’s Office, 449 F.3d 1342, 1352 (11th Cir.2006).
The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought with respect to prison conditions under section 1983 ... by a prisoner ... until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This mandatory exhaustion requirement applies to all inmate suits about prison life. Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 992, 152 L.Ed.2d 12 (2002). Furthermore, the PLRA “requires proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 92, 126 S.Ct. 2378, 2387, 165 L.Ed.2d 368 (2006). An inmate must use all steps in the administrative process and comply with any administrative “deadlines and other critical procedural rules” before exhaustion is proper. Id. at 89, 126 S.Ct. at 2385-86 (internal quotation omitted). Thus, if an inmate has filed an “untimely or otherwise procedurally defective administrative grievance or appeal,” he has not properly exhausted his administrative remedies. Id. at 83-84, 126 S.Ct. at 2382.
According to the grievance procedure in place at the Georgia State Prison, inmates are required to file an informal grievance to attempt a resolution. See Turner v. Burnside, 541 F.3d 1077, 1080 (11th Cir.2008). If the inmate is unsatisfied with this result, he may file a formal grievance. Id. at 1081. If the formal grievance is denied, the inmate may appeal to the final step, a review by the Commissioner’s office. Id.
Here, the record reveals that West did not file an informal or formal grievance regarding retaliation by Higgins prior to filing his current lawsuit. Therefore, West failed to exhaust his administrative remedies, and the court did not err in dismissing his complaint as to Higgins.
B. The District Court’s Grant of Summcm/ Judgment
We review the district court’s grant of summary judgment de novo, applying the same legal standards as the district court. Sierra Club, Inc. v. Leavitt, 488 F.3d 904, 911 (11th Cir.2007). “Summary judgment is proper if, when viewing the evidence in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id. Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).
The non-moving party “[m]ay not rely merely on allegations or denials in its own pleading; rather, its response ... must set out specific facts showing a genuine issue for trial.” Fed.R.Civ.P. 56(e)(2). “A mere ‘scintilla’ of evidence supporting the opposing party’s position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986)). Conclusory, uncorroborated allegations by a plaintiff in an affidavit or deposition will not create an issue of fact for trial sufficient to defeat a well supported summary judgment motion. See Earley v. Champion Int’l Corp., 907 F.2d 1077, 1081 (11th Cir.1990). Unsworn statements, even from pro se parties, *426should not be “considered] in determining the propriety of summary judgment.” Gordon v. Watson, 622 F.2d 120, 123 (5th Cir.1980). Federal law does provide an alternative to making a sworn statement, but requires that the statement include a handwritten averment, signed and dated, that the statement is true under the penalties of perjury. 28 U.S.C. § 1746.
To succeed on a § 1983 action, a plaintiff must show that he was deprived of a federal right acting under color of state law. Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir.2001). With respect to convicted and sentenced prisoners, “[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight.” Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976). This is because the Due Process Clause, standing alone, confers no liberty interest in freedom from state action taken “ ‘within the sentence imposed.’ ” Hewitt v. Helms, 459 U.S. 460, 468, 103 S.Ct. 864, 869, 74 L.Ed.2d 675 (1983).
While states may, under certain circumstances, create liberty interests which are protected by the Due Process Clause, these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. See Sandin v. Conner, 515 U.S. 472, 483-84, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995); Kirby v. Siegelman, 195 F.3d 1285, 1290-91 (11th Cir.1999). An inmate has no liberty interest in a particular classification, prison assignment, or transfer even if the inmate loses access to rehabilitative programs and experiences more burdensome conditions than before. McKune v. Lile, 536 U.S. 24, 39-40, 122 S.Ct. 2017, 2027-28, 153 L.Ed.2d 47 (2002) (rejecting a challenge by the inmate to expected demotion in custodial status classification). Other examples of prison decisions not giving rise to liberty interests include transfers to other prisons, and visitation. See Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983) (interstate transfers); Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (visitation).
The Eighth Amendment, applicable to the states through the Fourteenth Amendment, governs the conditions under which convicted prisoners are confined and the treatment they receive while in prison. Farrow v. West, 320 F.3d 1235, 1242 (11th Cir.2003). Deliberate indifference to an inmate’s serious medical needs violates the Eighth Amendment. Id. at 1243. “To show that a prison official acted with deliberate indifference to serious medical needs, a plaintiff must satisfy both an objective and a subjective inquiry.” Id. First, a plaintiff must demonstrate an objectively serious medical need that has been “diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention,” and that, “if left unattended, poses a substantial risk of serious harm.” Id. (internal quotation and brackets omitted). Second, a plaintiff must show that the prison official acted with an attitude of deliberate indifference to that serious medical need. Id. “[Deliberate indifference has three components: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than *427mere negligence.” McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir.1999).
Deliberate indifference requires that the response made by prison officials to the serious medical need “was poor enough to constitute an unnecessary and wanton infliction of pain, and not merely accidental inadequacy, negligence in diagnosis or treatment, or even medical malpractice actionable under state law.” Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir.2000) (internal quotation omitted).
Where an inmate receives adequate medical care, but desires different modes of treatment, the care provided does not amount to deliberate indifference. See Hamm v. DeKalb County, 774 F.2d 1567, 1575 (11th Cir.1985). A simple difference in medical opinion between the medical staff and an inmate as to the latter’s diagnosis or course of treatment does not establish deliberate indifference. Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir.1991). Furthermore, “whether governmental actors should have employed additional diagnostic techniques or forms of treatment is a classic example of a matter for medical judgment and therefore not an appropriate basis for grounding liability under the Eighth Amendment.” Adams v. Poag, 61 F.3d 1537, 1545 (11th Cir.1995) (internal quotation omitted). However, even when medical care is provided, the following conduct may be actionable as deliberate indifference: (1) grossly inadequate care; (2) a decision to take an “easier but less efficacious course of treatment;” (3) medical care that is “so cursory as to amount to no treatment at all;” and (4) a delay in treatment. McElligott, 182 F.3d at 1255; see also, Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir.2004).
West did not have an established liberty interest in his mental health classification; therefore, the district court’s conclusion that the defendants did not violate his due process rights by downgrading his mental health status was correct. Furthermore, West did not present evidence creating a question of fact as to whether the defendants were deliberately indifferent to his serious medical needs, as the judgement, procedures, and care they provided were not in disregard of West’s mental health needs or grossly inadequate. Much of West’s “evidence” to the contrary consisted of affidavits not made under penalty of perjury, but, regardless, West did not provide sufficient evidence to establish that the defendants were deliberately indifferent to his mental health needs.2 West’s claims rest on a difference of opinion regarding the care that he needed and received, and the evidence does not establish deliberate indifference to a serious medical need.
The district court did not err in dismissing the complaint against Higgins or granting summary judgment in favor of the remaining defendants. Based on the foregoing, we affirm.
AFFIRMED.3
. Because West does not argue, on appeal, that the defendants motions for summary judgment should not have been ruled on due to insufficient discovery, under Fed.R.Civ.P. 56(f), any claim in this respect is waived. Cont’l Technical Servs., Inc. v. Rockwell Int'l Corp., 927 F.2d 1198, 1199 (11th Cir.1991) (holding that “[a]n argument not made is waived”).
. West's claim that the defendants violated a medical profile was not properly raised before the district court. See Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1314-15 (11th Cir.2004) (holding that, even under the liberal pleading standard, a plaintiff must amend a complaint once discovery commences and may not amend through argument in a brief opposing summary judgment). Regardless, even if it had been properly raised, it fails for the reasons herein.
. All pending motions are denied. For example, West’s motion for a temporary restraining order and order to show cause for a *428preliminary injunction is denied. West's motion to file a supplemental brief is denied. West’s request for oral argument is denied. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471825/ | OPINION
PER CURIAM.
Enoch Bey appeals pro se from the District Court’s dismissal of his removal motion and subsequent denial of his motions for an extension time and leave to file an amended notice of removal. Because Bey presents no substantial question on appeal, we will affirm.
In January 2009, Bey (under the alias King Elber Tyrone I) filed a motion for leave to proceed in forma pauperis and an unsigned notice of removal in the District Court. The court granted the motion for IFP and dismissed the action for lack of subject matter jurisdiction because Bey was attempting to remove a state criminal action to federal court.
Bey then filed a motion for extended time for leave to file an amended notice of removal in which he proclaimed his nationality as a “Moorish American” and cited to the Thirteenth Amendment as a basis for his nationality. He also claimed that he was a party to the Treaty of Peace and Friendship of 1787 between Morocco and the United States of America and that “my status as a sovereign prevents this court from being able to establish jurisdiction over me.” He requested that the District Court remove his case from the “lower court” — presumably the state court — and dismiss the action with prejudice for lack of jurisdiction. The District Court denied the motion, noting that the matter was previously dismissed for lack of jurisdiction.1 Bey timely appealed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We may summarily affirm if it clearly appears that no substantial question is presented. See L.A.R. 27.4, I.O.P. 10.6. Although Bey’s notice of removal does not appear on the District Court’s docket, a later filing reveals that Bey “respectfully demand[s] removal of the matter under the caption COMMONWEALTH OF PENNSYLVANIA v. King Elbert Tyrone I, docket number MC-51CR-0061436-2008.” A search of this docket number confirms that it refers to a state criminal proceeding against Elbert Ferguson, an alias of Bey. Bey has not shown why he cannot be prosecuted in state court or otherwise demonstrated an independent basis for removing his matter to federal court. See, e.g. 28 U.S.C. §§ 1442, 1446. Accordingly, we will affirm the judgment of the District Court.
. On the same day he filed his appeal, Bey filed another motion for an extension of time to file an amended notice of removal, which the District Court denied less than a week later for the same reasons it denied the previous motion for extension of time. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471827/ | OPINION
PER CURIAM.
Appellant Lamar McCrory, proceeding pro se, appeals from the District Court’s denial of his Petition for Relief Pursuant to the Writ of Audita Querela, 28 U.S.C. § 1651. For the reasons that follow, we will summarily affirm the order of the District Court.
In 1996, McCrory was found guilty of conspiracy to commit armed bank robbery, armed bank robbery, and carrying and using a firearm during a crime of violence. After his conviction and sentence were affirmed on appeal, he filed a 28 U.S.C. § 2255 motion, a Rule 60(b) motion to vacate the judgment of conviction, a motion for an evidentiary hearing, and two applications to file a second or successive 28 U.S.C. § 2255 motion, all of which were denied. On April 24, 2008, McCrory filed a document in the United States District Court for the Eastern District of Pennsylvania entitled “Petition for Relief Pursuant to the Writ of Audita Querela, 28 U.S.C. § 1651.” In it, he averred that he had recently discovered, through a conversation with his trial counsel, that before the *734trial, the Government had made him a plea offer which counsel faded to communicate to him and which he would have taken if given the opportunity, and that one of the prosecution’s key witnesses was hypnotized in preparation for her testimony at trial. On December 24, 2008, 2008 WL 5381358, the District Court entered a memorandum and order denying McCro-ry’s motion. McCrory now appeals.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.1 The District Court denied McCrory’s petition for a writ of audita querela on the ground that to permit it to proceed would be to circumvent the intent of Congress in enacting AEDPA. In United States v. Valdez-Pacheco, 237 F.3d 1077 (9th Cir.2001), the United States Court of Appeals for the Ninth Circuit held that while the common law writ of audita querela can be used in criminal cases to the extent that it “fill[s] ‘gaps’ in the current systems of postconviction relief,” a federal prisoner “may not circumvent valid congressional limitations on collateral attacks by asserting that those very limitations create a gap in the postconviction remedies that must be filled by the common law writs.” Id. at 1079-80; see also United States v. Holt, 417 F.3d 1172, 1175 (11th Cir.2005) (writ of audita querela unavailable where relief is cognizable under § 2255). McCrory’s inability to bring a second § 2255 motion at the present time does not render § 2255 inadequate or ineffective to challenge his eonviction. Cf. Cradle v. United States ex rel. Miner, 290 F.3d 536, 539 (3d Cir.2002) (per curiam) (explaining that “Section 2255 is not inadequate or ineffective merely because the sentencing court does not grant relief, the one-year statute of limitations has expired, or the petitioner is unable to meet the stringent gatekeeping requirements of the amended § 2255”); United States v. Baptiste, 223 F.3d 188, 189-90 (3d Cir.2000) (per curiam) (holding that “the procedural barriers erected by AEDPA are not sufficient to enable a petitioner to resort to coram nobis merely because he/ she is unable to meet AEDPA’s gatekeep-ing requirements”). Based on the foregoing, we conclude that McCrory may not use the writ of audita querela to circumvent AEDPA’s gatekeeping requirements.
Because McCrory’s appeal presents no substantial question, we will summarily affirm the order of the District Court denying relief. See 3d Cir. LAR 27.4; I.O.P. 10.6.
. Although we originally indicated that this appeal might be dismissed as untimely, we conclude that it will not. McCrory filed his notice of appeal on March 10, 2009. On March 12, 2009, he filed a motion for an extension of time in which to file his notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(5). On March 18, 2009, the District Court granted his request for an extension of time. This extended the period in which to file his appeal from February 23, 2009 to either March 23, 2009 or April 1, 2009. See Fed. R.App. P. 4(a)(1)(B); 4(a)(5). Because McCrory's notice of appeal was filed with this time frame, we have jurisdiction to consider his appeal. See Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 2366, 168 L.Ed.2d 96 (2007) (holding that the timely filing of a notice of appeal is a jurisdictional requirement). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471829/ | OPINION
PER CURIAM.
Lawrence Wilder appeals from an order of the District Court denying his “motion to reopen” pursuant to Federal Rule of Civil Procedure 60(b), and denying his motion for appointment of counsel as moot.
Wilder filed the Rule 60(b) motion on March 5, 2009, seeking reconsideration of a June 11, 2002 order dismissing his civil rights complaint with prejudice. According to Wilder, he has “new evidence to [sic] the defendants’ guilt.” We agree with the District Court that Wilder’s motion is untimely because it was filed almost seven years after the challenged order was entered. See Fed.R.Civ.P. 60(c)(1) (“A *736motion under Rule 60(b) must be made within a reasonable time — and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding”); Moolenaar v. Gov’t of V.I., 822 F.2d 1342, 1348 (3d Cir.1987) (two years not a “reasonable time” for 60(b) purposes); Martinez-McBean v. Gov’t of V.I., 562 F.2d 908, 913 n. 7 (3d Cir.1977) (expressing “serious doubts” that two and one half year delay in filing Rule 60(b) motion would comply with “reasonable time” requirement).1
There being no substantial question presented by Wilder’s appeal, we will summarily affirm the District Court’s order denying both his Rule 60(b) motion and his motion for appointment of counsel. See LAE 27.4; I.O.P. 10.6.
. Even if Wilder's motion were timely, he would be unable to bear the "heavy burden" for demonstrating entitlement to Rule 60(b) relief. Bohus v. Beloff, 950 F.2d 919, 930 (3d Cir.1991). Specifically, the alleged "newly discovered evidence" (an EEOC press release describing a settlement in an unrelated matter) is not "material” to Wilder’s case. Id. Nor would it "probably have changed the outcome of the trial.” Id. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471831/ | OPINION
PER CURIAM.
Francis A. Muolo, a federal prisoner, appeals from an order of the United States District Court for the Western District of Pennsylvania denying his habeas corpus petition filed under 28 U.S.C. § 2241, in which he claims that the Federal Bureau of Prisons (“BOP”) wrongfully denied him eligibility for early release despite his participation in a substance abuse treatment program. More specifically, Muolo claims that the regulation the BOP applied to deny his eligibility for early release, 28 C.F.R. § 550.58(a)(l)(vi)(B) (2000), is invalid in light of two decisions from the United States Court of Appeals for the Ninth Circuit. We will summarily affirm because Muolo’s appeal presents no substantial question. See 3d Cir. L.A.R. 27.4 and 3d Cir. I.O.P. 10.6.
I.
A.
Under 18 U.S.C. § 3621(e)(2)(B), the BOP may reduce the term of a federal prisoner convicted of a “nonviolent offense” if the prisoner successfully completes a substance abuse treatment program. Congress did not define the statutory term “nonviolent offense.” In 1995, the BOP published a regulation, 28 C.F.R. § 550.58, that implemented the statute’s “nonviolent offense” criteria by denying early release to inmates whose “current offense is determined to be a crime of violence as defined in 18 U.S.C. § 924(c)(3),” as well as to inmates who had a prior state or federal conviction for homicide, forcible rape, robbery, or aggravated assault. Drug Abuse Treatment Programs: Early Release Consideration, 60 Fed.Reg. 27692, 27695 (May 25, 1995). The BOP also issued a Program Statement further defining “crimes of violence” to include drug trafficking offenses under 21 U.S.C. § § 841 and 846 if the offender received a two-level sentence enhancement for possessing a dangerous weapon during the commission of the offense. U.S. Dep’t of Justice, Fed. Bureau of Prisons, Program Statement No. 5162.02: Definition of Term “Crimes of Violence,” § 9 (April 23, 1996). The BOP explained that it considered a drug offense that included the weapons-possession sentencing enhancement to be a “crime of violence” because “possession of a dangerous weapon during the commission of a drug offense poses a substantial risk that force may be used against persons or property.” Id.
*738The Courts of Appeals then divided over the validity of the BOP’s definition of “crime of violence.” The agency’s regulation, 28 C.F.R. § 550.58, relied upon the statutory definition of “crime of violence” in 18 U.S.C. § 924(c), but its Program Statement extended that definition to include drug offenses under 21 U.S.C. §§ 841 and 846 with sentencing enhancements for possession of a dangerous weapon. And those offenses had generally not been regarded by federal courts to be crimes of violence within the meaning of 18 U.S.C. § 924(c). Compare, e.g., Pelissero v. Thompson, 170 F.3d 442, 447 (4th Cir.1999) (upholding the regulation and Program Statement), with Roussos v. Menifee, 122 F.3d 159, 164 (3d Cir.1997) (finding the Program Statement invalid). This split among the Circuits caused the BOP to publish an interim regulation in 1997 that attempted to avoid the circuit split and allow uniform application of its denial criteria throughout its institutions. The BOP removed the language from 28 C.F.R. § 550.58 that referenced the statutory definition of crimes of violence. It then made categorical denials of early release “[a]s an exercise of the discretion vested in the Director” of the BOP. Drug Abuse Treatment and Intensive Confinement Center Programs: Early Release Consideration, 62 Fed.Reg. 53690, 53691 (Oct. 15, 1997). The 1997 regulation continued to deny early release to prisoners convicted of drug offenses with sentencing enhancements for the possession of a firearm: “The following categories of inmates are not eligible for early release ... [i]nmates whose current offense is a felony ... [t]hat involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives.” 28 C.F.R. § 550.58(a)(1)(vi)(B) (1997).
In 2000, the interim rule became final without change. Drug Abuse Treatment and Intensive Confinement Center Programs: Early Release Consideration, 65 Fed.Reg. 80745 (Dec. 22, 2000). As it had in its 1997 Federal Register notice, the BOP once again explained that the regulation was revised to avoid the ramifications of the circuit split: “The first interim rule attempted to define the term ‘crime of violence’ pursuant to 18 U.S.C. § 924(c)(3). Due to varying interpretations of the regulation and caselaw, the Bureau could not apply the regulation in a uniform and consistent manner. The third interim rule sought to resolve this complication.” Id. at 80747.
Between the publication of the 1997 interim regulation and the 2000 final regulation, a circuit split again developed, this time on whether the BOP had the discretion to make the categorical denial of early release set forth in 28 C.F.R. § 550.58(a)(1)(vi)(B). The Supreme Court resolved the issue in Lopez v. Davis, 531 U.S. 230, 121 S.Ct. 714, 148 L.Ed.2d 635 (2001), in which the Court held that 18 U.S.C. § 3621(e)(2)(B) grants the BOP the discretion to decide whether to reduce a prisoner’s sentence. 531 U.S. at 241, 121 S.Ct. 714. The Court further held that the regulation denying prisoners convicted of a felony that involved possession of a dangerous weapon is a permissible exercise of that discretion:
Having decided that the Bureau may categorically exclude prisoners based on their preconviction conduct, we further hold that the regulation excluding Lopez [28 C.F.R. § 550.58(a)(l)(vi)(B) ] is permissible. The Bureau reasonably concluded that an inmates’s prior involvement with firearms, in connection with the commission of a felony, suggests his readiness to resort to life-endangering violence and therefore appropriately determines the early release decision.
Id. at 244, 121 S.Ct. 714.
After Lopez, the Ninth Circuit issued two opinions holding that the 1997 interim regulation and the 2000 final regulation *739were invalid. In Paulsen v. Daniels, 413 F.3d 999 (9th Cir.2005), the Ninth Circuit held that the 1997 interim regulation was invalid because it became effective immediately and thus violated the notice and comment requirements of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551 et seq. In Arrington v. Daniels, 516 F.3d 1106 (9th Cir.2008), the Ninth Circuit held that the 2000 final regulation was invalid under section 706(2)(A) of the APA, which requires a reviewing court to set aside a final agency action if it is “arbitrary, capri‘cious, an abuse of discretion, or otherwise not in accordance with law,” because the BOP did not give a rationale for its action. 5 U.S.C. § 706(2)(A). Although the BOP gave two reasons for its decision to categorically deny early release to prisoners convicted of felonies involving the possession of firearms — public safety and a desire to be able to uniformly apply its regulation despite the circuit split over the 1995 regulation — the Ninth Circuit rejected both. It dismissed the public safety reason because it was not in the administrative record, but only in the agency’s brief to the Supreme Court. Id. at 1113. Therefore, the court rejected the public safety reason as the “post hoc rationale” of appellate counsel. The Arrington court also rejected the uniformity rationale because it did not explain why the agency chose to achieve uniformity through a rule of exclusion when other approaches could also achieve that goal. Id. at 1114.
The BOP recently published another final regulation, 28 C.F.R. § 550.55 (effective March 16, 2009), which continues to categorically deny early release to prisoners convicted of a felony that involved the possession of a dangerous weapon. Drug Abuse Treatment Program: Subpart Revision and Clarification and Eligibility of D.C.Code Felony Offenders for Early Release Consideration, 74 Fed.Reg. 1892 (Jan. 14, 2009); 28 C.F.R. § 550.55(b)(5)(h). In the Federal Register notice, the BOP states that the Director of the Bureau is exercising his discretion to deny early release to such prisoners because “there is a significant potential for violence from criminals who carry, possess or use firearms while engaged in felonious activity. Thus, in the interest of public safety, these inmates should not be released months in advance of completing their sentences.” Id. at 1895. The BOP also reiterated the rationale the agency presented to the Supreme Court — using a quotation from the Lopez decision — and stated that the BOP “adopts this reasoning.” Id.
B.
Turning to the present appeal, Muolo is serving a fifty-seven-month sentence at the Federal Correctional Institution in McKe-an, Pennsylvania, for conspiracy to possess with intent to distribute cocaine and possession with intent to distribute a controlled substance, in violation of 21 U.S.C. § § 846 and 841(a)(1). His projected release date, assuming the application of good time credit, is March 2, 2010. In December 2007, staff at FCI McKean determined that Muolo is not eligible for early release despite participation in a substance abuse treatment program because 28 C.F.R. § 550.58(a)(l)(vi)(B) applies to his situation: Muolo received a two-level sentence enhancement because he possessed a dangerous weapon at the time of his arrest. Muolo’s administrative appeals of this decision were denied. He then filed a federal habeas petition claiming the BOP regulation was invalid under Paulsen and Arrington. The parties consented to having the matter decided by a magistrate judge pursuant to 28 U.S.C. § 636(c), who denied the petition on January 9, 2009, finding no merit in Muolo’s claims. Muolo v. Quintana, 593 F.Supp.2d 776, 787 (W.D.Pa.2009). Muolo timely appealed to this Court and the government filed a *740motion seeking summary affirmance of the order of the District Court.
II.
Muolo first claims that he is entitled to habeas relief on the basis of the Ninth Circuit’s decision in Paulsen, which held that the 1997 interim version of 28 U.S.C. § 550.58(a)(1)(vi)(B) was invalid because the BOP did not adhere to the notice and comment requirements of the APA. As the District Court explained, this claim lacks merit for the simple reason that Muolo was not denied eligibility for early release under the 1997 interim regulation. Rather, he was denied under the 2000 regulation that was finalized after a notice and comment period. Thus, Paulsen does not apply to Muolo’s situation and cannot provide a basis for habeas relief.
Muolo’s second claim is based solely on the Arrington decision, which held that the 2000 final regulation was invalid under section 706(2)(A) of the APA because the BOP failed to provide a sufficient reason in the administrative record for the regulation. To date, no court outside of the Ninth Circuit has followed Arrington. On the contrary, the decision has been vigorously criticized by many district courts, as well the Eighth Circuit, the only Court of Appeals to have yet addressed the Arrington decision.
In Gatewood v. Outlaw, the Eighth Circuit rejected Arrington as “contrary to the Supreme Court’s decision in Lopez ” and held that the BOP’s uniformity and public safety rationales provided sufficient justification for the 2000 regulation. 560 F.3d 843, 846 (8th Cir.2009). According to the Eighth Circuit, the Arrington court “erred when it disregarded the BOP’s public safety rationale” simply because that rationale was not expressed in the Federal Register notice for the 2000 final regulation. Id. at 847. Public safety was the contemporaneous rationale for the regulation, as recognized by the Supreme Court in Lopez, and was not merely the post hoc rationalization of appellate counsel. Id. at 848. Moreover, the Eighth Circuit noted that the BOP has consistently maintained a public safety basis for the regulation in Program Statements. Id. Finally, the court found that the BOP had strong substantive and administrative interests in applying its policy decisions uniformly throughout its institutions, providing an additional justification for the regulation. Id. at 848-49. The District Court in the present case came to this conclusion, Muolo, 593 F.Supp.2d at 786-87, as have many other district courts. See, e.g., Hicks v. Fed. Bureau of Prisons, 603 F.Supp.2d 835, 840 (D.S.C.2009); Ables v. Eichenlaub, No. 08-204, 2009 WL 722287, *6-*7, 2009 U.S. Dist. LEXIS 25103 at *17-*18 (N.D.Fla., Mar. 18, 2009) (collecting cases); Minotti v. Whitehead, 584 F.Supp.2d 750, 764-65 (D.Md.2008). We likewise do not find the reasoning of Arrington persuasive.
The scope of judicial review of agency rulemaking under the APA’s “arbitrary and capricious” provision, 5 U.S.C. § 706, is “narrow, and a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). A regulation may be found arbitrary and capricious “if the agency relied on facts other than those intended by Congress, did not consider ‘an important aspect’ of the issue confronting the agency, provided an explanation for its decision which ‘runs counter to the evidence before the agency,’ or is entirely implausible.” Rite Aid of Pennsylvania, Inc., v. Houstoun, 171 F.3d 842, 853 (3d Cir.1999) (quoting State Farm, 463 U.S. at 43, 103 S.Ct. 2856). A reviewing court “may not supply a reasoned basis for the agency’s action that the agency itself has not given,” but may “uphold a decision *741of less than ideal clarity if the agency’s path may reasonably be discerned.” State Farm, 463 U.S. at 43, 103 S.Ct. 2856.
Here, we agree with the District Court and the Eighth Circuit that the BOP articulated a sufficient rationale for 28 C.F.R. § 550.58(a)(l)(vi)(B). Although the public safety rationale was not explicit in the Federal Register notices for the 1997 or 2000 regulations, it can “reasonably be discerned” from the regulatory history and attendant litigation. The BOP amended the regulation due to its inability to uniformly apply the 1995 version after a circuit split developed on its validity in light of the BOP’s Program Statements. The BOP referred to the circuit split in both its 1997 and 2000 Federal Register notices. See 62 Fed.Reg. 53690; 65 Fed. Reg. 80745, 80747. As the circuit court litigation focused on the BOP’s Program Statements and the BOP referred to that litigation in its notices regarding the regulations, it is both reasonable and appropriate to consider those Program Statements when discerning the agency’s rationale for the 1997 and 2000 regulations. See Gate-ivood, 560 F.3d at 847.
Protecting public safety is the express reason given in the Program Statements for the BOP’s decision to categorically deny early release to prisoners convicted of drug offenses with sentence enhancements for possession of a dangerous weapon: possession of a dangerous weapon during the commission of a drug offense “poses a serious potential risk that force may be used against persons or property.” U.S. Dep’t of Justice, Fed. Bureau of Prisons, Program Statement 5162.04: Categorization of Offenses, § 7(b) (Oct. 9, 1997); Program Statement 5162.02, § 9. Indeed, courts reviewing the validity of the 1995 regulation recognized that public safety was BOP’s rationale for its rule — well before the litigation of Lopez in the Supreme Court. See, e.g., Pelissero, 170 F.3d at 445 (quoting the district court’s conclusion that it is “entirely reasonable and certainly not arbitrary for the BOP to equate gun possession and drug dealing with violence, thus supporting its interpretation of not being a ‘nonviolent offense’ ”); Venegas v. Henman, 126 F.3d 760, 765 (5th Cir.1997) (the BOP’s “determination that a sufficient nexus exists between the offenses at issue and a substantial risk of violence is a valid exercise of discretion which this Court will not disturb”).
We also find it significant that the Supreme Court has upheld the reasonableness of the 1997 regulation and its public safety rationale: the BOP “reasonably concluded that an inmate’s prior involvement with firearms, in connection with the commission of a felony, suggests his readiness to resort to life-endangering violence.” Lopez, 531 U.S. at 244, 121 S.Ct. 714. The Arrington court discounted this aspect of Lopez, concluding that the Supreme Court did not “address whether the agency itself articulated” the public safety rationale because the Court cited counsel’s arguments rather than the administrative record. 516 F.3d at 1115-16. We, however, cannot so readily conclude that the Supreme Court failed to consider whether the public safety rationale was legitimate — i.e., whether it was the BOP’s contemporaneous rationale for the regulation and not merely an after-the-fact justification developed for the litigation — when the Court chose to evaluate the reasonableness of that rationale as part of determining the regulation’s validity. Cf. Gateiuood, 560 F.3d at 848 (noting that there “is simply no reason to suspect that public safety was not the actual basis” for the regulation given the BOP’s “primary public safety mission”).
Finally, the regulation facially manifests a concern for public safety because it also denies early release to prisoners who have *742a prior conviction for homicide, forcible rape, robbery, aggravated assault, or child sexual abuse; prisoners whose current offense is a felony that has an element of actual, attempted, or threatened use of physical force against a person or property; and prisoners whose current offense “by its nature or conduct” presents a serious potential risk of physical force against a person or property, or involves child sexual abuse offenses. 28 C.F.R. § 550.58(a)(l)(iv), (vi)(A), (C), (D). See Muolo, 593 F.Supp.2d at 787.
For these reasons, we agree with the District Court that 28 C.F.R. § 550.58(a)(l)(vi)(B) is not arbitrary and capricious within the meaning of section 706 of the APA. Accordingly, we will grant Appellees’ motion and will summarily affirm the District Court’s order denying Muolo’s habeas petition. We deny as moot Appellant’s motion for an order on Appellee’s motion. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471833/ | OPINION
ROTH, Circuit Judge.
John Mizic appeals the sentence he received for violating 18 U.S.C. § 751(a) (escape), 18 U.S.C. § 1344 (bank fraud), and 18 U.S.C. § 1708 (possession of stolen mail). Mizic argues that the government breached its plea agreement with him by “undermining its recommendation for sentence reduction” and that the District Court’s sentence was unreasonable because it erred in applying the sentencing guidelines to his conduct. We assume the parties’ familiarity with the facts and the record of prior proceedings, which we refer to only as necessary to explain our decision. For the reasons given below, we will affirm the District Court’s judgment of sentence in this matter.1
Mizic’s argument that the government undermined its recommendation for sentencing reduction is wholly without merit. In the agreement, the parties stipulated to a 140-month sentence, with the potential for departure at the government’s recommendation upon its determination that Mizic had provided substantial assistance in uncovering the extent of his crimes and those of any others involved. The government requested a sixteen-month reduction. The District Court, however, within its discretion rejected this departure and we will not review this rejection. See U.S. v. Cooper, 437 F.3d 324, 332-33 (3d Cir.2006). Mizic then received a 140-month sentence, as prescribed in the plea agreement. Because the sentence imposed was -within the terms of the plea agreement, the government did not breach it.2
Mizic’s second argument, that his sentence was unreasonable because the District Court incorrectly calculated his sentence based on the guidelines, also fails. The plea agreement states that “pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, the government and the defendant stipulate and agree to the following regarding the defendant’s offense level, criminal history category, and sentence: The parties shall stipulate that the defendant’s sentence should be 140 months imprisonment....” An agreement entered under Rule 11(c)(1)(C) “binds the court once the court accepts the plea agreement.” Fed.R.Crim.P. 11(c)(1)(C); United States v. Bernard, 373 F.3d 339, 343 (3d Cir.2004). The District Court accepted the plea agreement; therefore, it was reasonable for the court to sentence Mizic in accordance with the agreement’s terms.
For the foregoing reasons, we will affirm the District Court’s judgment of sentence.
. We exercise plenary review over whether the government breached the terms of its plea agreement. United States v. Rivera, 357 F.3d 290, 293-94 (3d Cir.2004). Plenary review also applies to the district court’s interpretation of the Sentencing Guidelines; we review any factual findings for clear error. United States v. Grier, 475 F.3d 556, 570 (3d Cir.2007).
. Had it not requested a sixteen-month departure, the government could still have been in compliance with the agreement, which explicitly stated the government would determine whether Mizic's assistance was substantial. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471835/ | OPINION
McKEE, Circuit Judge.
Brian Tyson, a state prisoner, appeals the district court’s dismissal without prejudice of the habeas petition he filed pursuant to 28 U.S.C. § 2254. The district court concluded that it had no jurisdiction because it was an unauthorized second or successive petition. For the reasons that follow, we disagree and we will therefore reverse and remand for further proceedings.
I.
Because we write primarily for the parties, we will recite only so much of the facts and procedural history of this case as are necessary for the disposition of this appeal. While intricate procedural histories are not infrequent in federal review of state convictions, the procedural labyrinth formed by this petitioner’s attempt to get federal habeas review is as intricate and involved as any we have seen.
On September 17, 1997, at approximately 9:30 p.m., Tyson fatally shot Damon Millner in the chest. A state jury thereafter convicted Tyson of third-degree murder and possessing an instrument of a crime, and he was sentenced to thirty years imprisonment for the murder conviction and a concurrent term of one to two years for possessing an instrument of a crime.
A. Direct Appeal in State Court.
Tyson appealed his convictions to the Pennsylvania Superior Court on February 20, 2001. After several years in which Tyson filed repeated petitions and other motions, the Superior Court affirmed his convictions by an unpublished opinion dat*745ed January 24, 2004. Commonwealth v. Tyson, 847 A.2d 762 (Pa.Super.2004) (Table) (No. 691 EDA 2001)(en banc). In that opinion, the Superior Court held that Tyson’s eleven claims of ineffective assistance of trial counsel were prematurely raised pursuant to Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002).1 On November 16, 2004, the Pennsylvania Supreme Court denied Tyson’s petition for allowance of appeal.
B. First Federal Habeas Petition.
While his direct appeal in state court was proceeding, Tyson filed a pro se § 2254 petition for habeas relief in the district court on April 24, 2002. Tyson v. Greenspan, Dist. Ct. No. 02-2413. The petition was assigned to a Magistrate Judge who, on January 14, 2003, issued a Report and Recommendation (“R & R”) concluding that the petition should be denied and dismissed without prejudice for failure to exhaust state remedies. On February 10, 2003, the District Court approved the R & R and dismissed the petition without prejudice. Tyson attempted to appeal that dismissal, but we denied a certificate of appealability (“COA”) on November 18, 2003. Tyson v. Greenspan, No. 03-1689 (3d Cir. Nov. 18, 2003).
On October 3, 2002, Tyson filed a “Petition for a Writ of Mandamus,” which the District Court treated as a § 2254 habeas petition by order entered November 15, 2002, and subsequently dismissed. Tyson appealed that decision, but we dismissed for lack of jurisdiction. No. 02-4545. He subsequently filed motions for relief under Fed.R.Civ.P. 60(b) and other nunc pro tune motions for relief, but the district court dismissed the case on July 16, 2004 and denied mine pro tunc relief on October 12, 2004.
C. Second and Third Federal Habeas Petitions.
On March 18, 2004, Tyson filed his second § 2254 petition. Tyson v. Officer Myers, Dist. Ct. No. 04-1173. On June 21, 2004, he filed a third § 2254 petition, claiming that he did not receive notice that his second petition (No. 04-1173) was docketed. Tyson v. Officer Myers, Dist. Ct. No. 04-2723. Tyson began to litigate both petitions and, as the Magistrate Judge noted, Tyson admitted in one of his many court filings that his petition docketed at No. 04-2723 raised the same Ex Post Facto and Due Process challenges he raised in his petition docketed at No. 04-1173.
On March 15, 2005, the Magistrate Judge issued another R & R concluding that Tyson’s habeas petition docketed at No. 04-1173 should be dismissed without prejudice for failure to exhaust state remedies. In doing so, the Magistrate Judge specifically warned Tyson that he must file his state Post Conviction Relief Act petition no later than February 13, 2006, to avoid procedural default of his claims on federal habeas review.
On that same day, the Magistrate Judge issued a R & R in response to the habeas petition docketed at No. 04-2723. The judge noted that because the claims raised in that petition are essentially the same as the claims raised in Tyson’s habeas petition docketed at No. 04-1173, he recommended that the petition docketed at No. 04-2723 should be dismissed with prejudice as an unauthorized second or successive petition.
On April 25, 2005, the District Court adopted the Reports and Recommendations for both petitions. Tyson subsequently filed numerous motions to alter or amend the judgment or correct the record *746under Rule 60(b) as to the petition docketed at No. 04-1178, which the District Court denied by orders dated April 27, 2005, May 10, 2005, and May 24, 2006.
Tyson also filed' numerous appeals in connection with the petition docketed in the District Court at No. 04-1173. On December 28, 2004, we dismissed his appeal (No. 04-2602) from the order concerning the proper form for his petition and filing fees for lack of jurisdiction. By order dated January 21, 2005, we denied his petition for a writ of mandamus (No. 04-4181). On August 16, 2005, we denied his requests for COAs on the merits. We concluded that the District Court had properly determined that Tyson had failed to exhaust his state remedies (No. 05-2353). On September 19, 2005, we dismissed his petition for reargument (No. 05-2601). By order dated August 22, 2005, we denied Tyson’s petition for a writ of mandamus (No. 05-3529). By order dated October 17, 2005, we denied his request for a COA regarding the district court’s denial of his request for a stay (No. 05-3671).
All the while, Tyson sought to re-open his second habeas petition in the District Court by filing another Rule 60(b) motion on May 18, 2006. The District Court denied that motion on May 24, 2006.2
D. State Post-Conviction Actions.
During this time, Tyson filed a pro se petition for relief under the Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq., in state court on June 30, 2005. Counsel was appointed on January 9, 2006, but the PCRA court granted Tyson permission to proceed pro se on April 10, 2006. The PCRA court dismissed his petition on June 5, 2006, after sending Tyson notice of its intention to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907.
Tyson appealed to the Pennsylvania Superior Court contending that the PCRA court erred by (1) “not recusing [herself], failing to state the reasons in the pre-dismissal notice, and failing to notify [him] of his pro se status;” (2) “ignoring] federal law by determining that the retroactive application of Grant did not violate the Ex Post Facto[J Due Process, Contracts Taking, [and] Bill of Attainder Clauses, and [his] right to counsel, of choice and a speedy appeal;” (3) determining that he was “not completely and constructively deprived of counsel and did not suffer abandonment of loyalty-conflict of interest at trial and on appeal, that it never erred during [his] trial, that [he] did not raise the original 11 pre-Grant claims, and that [he] is not actually and legally innocent;” and (4) rejecting unidentified claims of “newly-after-discovered evidence.” SA 143. In the body of his brief, Tyson raised numerous other claims
The Superior Court affirmed the PCRA court’s dismissal on May 1, 2007. Commonwealth v. Tyson, 929 A.2d 248 (Pa.Super.2007) (Table). The Superior Court held that Tyson had waived the more than thirty-two claims raised in the body of his brief because he did not include them in his statement of questions involved in violation of Pa.R.App.P. 2116(a). The court also denied the claims that were actually before it either because they were waived, or because they lacked merit. First, it found that Tyson’s allegation of trial court bias was waived because it was not raised on direct appeal, but that it would fail in any event as completely unsubstantiated. Second, it noted that Tyson failed to state a claim for PCRA relief in contending that the state courts erred in applying Com*747monwealth v. Grant, supra,, and that any claim of a constitutional violation was waived for lack of support and elaboration. Third, it held there was no merit to Tyson’s claim of ineffectiveness of trial and appellate counsel. Fourth, it found that Tyson waived his claim of after-discovered evidence because of his failure to provide any intelligible discussion to support it. On July 5, 2007, the Superior Court denied Tyson’s petition for reargument. Tyson then filed a petition for allowance of appeal with the Pennsylvania Supreme Court, which was denied on October 26, 2007.3 On November 8, 2007, Tyson filed an “Application for Reconsideration,” which the Pennsylvania Supreme Court denied on April 3, 2008.
E. The Habeas Petition That Is The Subject Of This Appeal.
The foregoing serpentine background brings us to the petition that is now pending before us. On January 23, 2006, Tyson filed another habeas petition (Dist.Ct. No. 06-0290), which is the subject of this appeal. In an order entered January 30, 2006, the district court granted Tyson leave to proceed in forma pauperis, ordered him to complete the standard form for filing petitions pursuant to § 2254, and directed him to return the completed form to the Clerk of Court within thirty days. Tyson returned the completed form on February 7, 2006. In his petition Tyson alleged that: (1) he had suffered an “Ex Post Facto — Due Process — contracts— choice of counsel — Takings—Bill of Attainder Clause violation” on the ground that “after [his] direct appeal was financed, briefed, and argued in reliance on the preexisting [Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977) ] rule system [prior to Commonwealth v. Grant, supra,] the Supreme Court (via the Superior Court) imposed new duties, impaired the obligation of [his] attorney-client contract, and changed the legal consequences of previously completed appeal acts,” Pet. 1112(A); (2) the state courts “refused to give ‘just compensation’ for destroying [his] vested legal and financial reliance in the pre-existing rule [prior to Grant ] and allow [him] to adapt to the rule change,” Pet. ¶ 12(B); and (3) he suffered a “speedy appeal — Due Process violation” on the ground that the state courts “prolonged [his] appeal for nearly two years and then constructively denied it on the basis of the Ex Post Facto Grant rule,” Pet. ¶ 12(C).
The District Court did not order the Commonwealth to file a response to the petition. Instead, it dismissed the petition without prejudice on February 13, 2006. It wrote:
On January 23, 2006, [Tyson] filed the above-captioned petition in this court seeking Habeas Corpus relief pursuant to 28 U.S.C. § 2254. [Tyson] has filed a previous petition in this court pursuant to 28 U.S.C. § 2254. labeled 04-cv-2723, which attacked the same conviction and/or sentence and was considered, and denied, on the merits. The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2241-2266, provides in relevant part that before such a second or successive petition is filed in the district court, the prisoner must first get permission to file in the district court from the circuit court pursuant to 28 U.S.C. § 2244(b)(3)(A), and that without such circuit permission, the district court lacks subject matter jurisdiction to consider such a habeas petition. Stewart v. Martinez-Villareal, 523 U.S. 637, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998); Felker v. Turpin, 518 U.S. 651, 116 S.Ct. *7482333, 135 L.Ed.2d 827 (1996); Benchoff v. Colleran, 404 F.3d 812 (3d Cir.2005).
App. 1. Accordingly, the District Court dismissed the petition without prejudice “on the grounds that [it] lacks subject matter jurisdiction over it.” Id.
On March 9, 2006, Tyson filed a notice of appeal, and we granted Tyson’s application for the COA filed on April 13, 2006. Our COA reads:
The foregoing request for a certificate of appealability is granted with regard to [Tyson’s] contention that the District Court improperly dismissed his § 2254 petition as an unauthorized second or successive petition. See Villanueva v. United Stales, 346 F.3d 55, 60 ([2d Cir.] 2003); Christy v. Horn, 115 F.3d 201, 208 (3d Cir.1997). The parties should also address whether [Tyson] has exhausted state court remedies.
F. Subsequent Filings.
Not surprisingly, our grant of a COA did not end Tyson’s filings in the District Court. On March 17, 2007, Tyson filed an additional habeas petition, also docketed at No. 06-0290, alleging various acts of malfeasance on the part of the state courts and the Commonwealth of Pennsylvania. Tyson requested, among other things, that the District Court waive the exhaustion requirement or grant his request for federal habeas relief. He attached to the petition a newly completed standard federal habeas petition form in which he asserted variations of the claims he previously asserted, in addition to new claims, viz., (1) that the state courts violated [the] “Ex Post Facto, Due Process, Contracts, Takings, Bill of Attainder clauses and right to counsel of choice and a speedy trial,” Pet. ¶ 12(A); “complete and constructive denial of counsel at trial for entirely failing to object to prosecutorial misconduct, judicial misconduct and error, abandonment of loyalty,” together with allegedly newly discovered, yet unspecified, evidence of his actual innocence, Pet. ¶ 12(b), and (3) constructive denial of counsel and conflict of interest on appeal” based on counsel’s “fail[ure] to challenge the after-the-fact rule change,” filing of “frivolous briefs in [Tyson’s] name, and failfure] to offer any argument why [the] appeal should be heard” or raise “meritorious claims,” Pet. ¶ 12(C). A short time later, on March 31, 2007, Tyson filed a “Motion for Recusal.” In an order entered March 31, 2007, the District Court held that this new federal habeas petition, together with the motion for recu-sal, would be held in abeyance pending the outcome of this appeal.
On April 5, 2007, Tyson filed yet another federal habeas petition, again under No. 06-0290, captioned “Application for Relief for Writ of Habeas Corpus re: Actual and Legal Innocence.” In an order entered April 9, 2007, the District Court held that this petition would also be held in abeyance pending the outcome of this appeal.
On August 1, 2007, Tyson filed an “Application for Release Pending, Appeal,” which the District Court denied in an order entered August 13, 2007. On August 28, 2007, Tyson filed a “Motion for Order Directing Release Pending Appeal under F.R.A.P. 23(b),” which the district court denied in an order entered on September 11, 2007.
In the meantime, Tyson filed another federal habeas petition, again under No. 06-0290, on September 6, 2007, followed by another copy of the petition on September 7, 2007, this time with two affidavits attached. In an order entered September 14, 2007, the District Court ruled that consideration of these petitions would be held in abeyance pending the outcome of this appeal.
On September 27, 2007, Tyson filed a notice of appeal from the District Court’s September 11, 2007 order denying his request for release pending appeal. That *749appeal was docketed independently of this appeal. Tyson v. Beard, No. 07-3884. By order dated December 11, 2007, we rejected Tyson’s claim that he was entitled to release and closed the appeal.
II.
The District Court’s holding that it lacked jurisdiction to consider Tyson’s ha-beas petition is incorrect. AEDPA’s provision requiring a petitioner to seek permission, see 28 U.S.C. § 2244(b)(3)(A), by a court of appeals before filing a “second or successive” habeas petition necessarily only applies where the petitioner’s initial filing can be considered a “first” habeas petition. A petition is considered a “prior application” for purposes of 28 U.S.C. § 2244(b) only if it was adjudicated on the merits. See Villanueva v. United States, 346 F.3d 55, 60 (3d Cir.2003). In contrast to the language of the district court’s order, Tyson’s third petition was not considered or rejected on the merits. See Tyson v. Meyers, Dist. Ct. No. 04-2723. Nor do Tyson’s first or second petitions, which were dismissed for failure to exhaust, form the basis for requiring permission under § 2244. See Christy v. Horn, 115 F.3d 201, 208 (3d Cir.1997) (if the initial petition was dismissed for failure to exhaust, § 2244 does not apply). Accordingly, Tyson has not yet filed a “first” petition for purposes of § 2244. Therefore, the District Court erred by dismissing Tyson’s petition which is the subject of this appeal as “second or successive.”
In our COA, we also directed that the parties address whether Tyson has exhausted his state remedies. At the time the briefs were filed, Tyson had not exhausted his state rémedies. However, as noted earlier, on April 3, 2008, the Pennsylvania Supreme Court denied Tyson’s motion for reconsideration of its denial of a petition for allowance of an appeal from the Superior Court’s affirmance of the PCRA court’s denial of his PCRA petition. Therefore, he has now exhausted his state remedies.
Inasmuch as the District Court erred in dismissing the habeas petition which is the subject of this appeal as a second or successive petition, and since he has now exhausted his state remedies, we will remand to the District Court so that court can determine which of his federal habeas petitions, all bearing No. 06-0290, contain the final and complete statement of his claims for habeas relief. Once Tyson decides which claims he wishes to pursue on federal habeas, the District Court can then review each of the claims, determine which have been properly presented to the state courts,4 and adjudicate any properly presented claims.
III.
For the above reasons, we will reverse the district court order dismissing without prejudice Tyson’s habeas petition and remand for further proceedings consistent with this opinion.5
. In Grant, the Pennsylvania Supreme Court created a general rule that ineffectiveness of counsel claims should be raised in Post Conviction Relief Act proceedings.
. Between July 2002 and January 2006, Tyson filed six other actions in the district court that were not federal habeas petitions. They included prisoner civil rights actions filed pursuant to 42 U.S.C. § 1983 and an action against his former counsel.
. Tyson also filed numerous other actions in the Pennsylvania Superior Court and the Pennsylvania Supreme Court which have nothing to do with the issue present in this appeal.
. The Commonwealth claims that certain of his claims have already been procedurally defaulted. However, we believe that a determination of that issue is best left for the district court’s determination in the first instance.
. We realize that our remand further complicates a case that, but for its relatively short time in federal court, could rival Dickens' Bleak House for its apparent potential to outlive every judge who ever has or ever will touch it (including this one). Yet, given the state of this record, we have no alternative but to require the District Court to look at this yet again. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471837/ | OPINION
SLOVITER, Circuit Judge.
Gabriel Castaneda-Sicardo (a/k/a Luis Alvarado), a citizen of Mexico, pled guilty to one count of illegal re-entry following his removal subsequent to his conviction for an aggravated felony, in violation of 8 U.S.C. §§ 1326(a), (b)(2). Castaneda-Si-cardo was sentenced to eighty-seven months imprisonment. His counsel, who filed a timely notice of appeal, also filed a motion to withdraw as counsel and a brief in support pursuant to Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
I.
In April 2008, Delaware prison personnel informed Immigration and Customs Enforcement (“ICE”) that a possible illegal alien, Castaneda-Sicardo, was in their custody. Castaneda-Sicardo was then interviewed by an ICE agent. He was read his Miranda rights, agreed to waive those *751rights, and admitted that he had been deported from the United States in March 2000. He also admitted that in July 2001, he re-entered the United States illegally and without permission.
Subsequent investigation revealed that Castaneda-Sicardo had illegally entered the United States on at least two occasions prior to July 2001. Further, Castaneda-Sicardo has an extensive criminal history in this country. Most relevant here, he was convicted in 1991 in California state court for transportation and sale of a controlled substance, for which he received an aggregate sentence of sixteen months imprisonment, and was convicted in 1996 in California state court for assault with a deadly weapon, for which he was sentenced to two years imprisonment. Following his re-entry to the United States in July 2001, Castaneda-Sicardo was also convicted in Delaware state court for forgery and possession of heroin.
Castaneda-Sicardo pled guilty to his indictment for the current offense pursuant to a plea agreement.1 The Presentence Report (“PSR”) determined that Castaneda-Sicardo faced a base offense level of eight, plus a sixteen-level enhancement based on the drug trafficking and assault convictions noted above pursuant to the U.S. Sentencing Guidelines Manual § 2L1.2(b)(l)(A) (2008). The PSR also recommended a three-level reduction for acceptance of responsibility, for a total offense level of twenty-one. Finally, Castaneda-Sicardo had a criminal history category of V, which, combined with his offense level, produced a Guidelines range of seventy to eighty-seven months imprisonment.
Neither Castaneda-Sicardo nor the government objected to the PSR or moved for a departure under the Guidelines, and the District Court adopted the PSR at Castaneda-Sicardo’s sentencing hearing. At that hearing, Castaneda-Sicardo argued that a downward variance was appropriate because the convictions upon which the sixteen-level enhancement was based were relatively stale. Further, he argued that his conduct subsequent to his re-entry in July 2001 was positive. He also contested the significance of his Delaware conviction for possession of heroin, alleging that he had pled guilty even though the drugs did not belong to him. The government, on the other hand, argued for a sentence within the Guidelines range.
The District Court sentenced Castaneda-Sicardo to eighty-seven months imprisonment, i.e., the top of the Guidelines range. The Court concluded that this sentence was necessary in light of the seriousness of the offense, the fact that Castaneda-Sicardo had twice previously entered the country illegally, his extensive criminal history, the need for deterrence, and the need to protect society from future crimes by Castaneda-Sicardo. The Court also rejected Castaneda-Sicardo’s argument that the conviction for possession of heroin should be discounted, concluding that the record showed that the drugs were found on his person.
Castaneda-Sicardo’s counsel timely appealed, and as noted above, now seeks to withdraw pursuant to Anders. Castaneda-Sicardo did not file a pro se brief in opposition, and the government filed a brief supporting counsel’s motion to withdraw.2
*752II.
This court’s rules provide: “Where, upon review of the district court record, counsel is persuaded that the appeal presents no issue of even arguable merit, counsel may file a motion to withdraw and supporting brief pursuant to Anders .... ” 3d Cir. L.A.R. 109.2 (2008). Accordingly, appellant’s counsel must “satisfy the court that he or she has thoroughly scoured the record in search of appealable issues” and then “explain why the issues are frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir.2000) (citation omitted.). “The Court’s inquiry when counsel submits an Anders brief is thus twofold: (1) whether counsel adequately fulfilled [Third Circuit Local Appellate Rule 109.2’s] requirements; and (2) whether an independent review of the record presents any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001).
Castaneda-Sieardo’s counsel contends that only one claim might arguably be raised on appeal, i.e., whether Castaneda-Sicardo’s sentence was reasonable, and that such a claim would be frivolous. We agree.
Castaneda-Sicardo entered, and the District Court accepted, a guilty plea pursuant to a plea agreement with the government on the single count of the indictment for illegal re-entry. Following entry of that plea, the District Court sentenced Castaneda-Sicardo in compliance with the three-step process mandated by our precedent. See United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006). First, the District Court adopted, without objection, the accurate calculation of the Guidelines range contained in the PSR. Second, neither Castaneda-Sicardo nor the government moved for a traditional departure under the Guidelines.
Finally, the District Court heard argument from both parties regarding Castaneda-Sicardo’s request for a downward variance and sentenced Castaneda-Sicardo to a term of imprisonment within the Guidelines range. The District Court explained its reasons for that sentence on the record, referring to the sentencing factors enumerated in 18 U.S.C. § 3553(a) as well as the arguments presented by Castaneda-Sicardo. The District Court’s reasoning amply supports the sentence imposed. Thus, any argument that the District Court abused its discretion in imposing Castaneda-Sicardo’s sentence is frivolous. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 596-97, 169 L.Ed.2d 445 (2007).
III.
For the above-stated reasons, we will grant counsel’s motion to withdraw and affirm the judgment of conviction and sentence.
. Castaneda-Sicardo was represented throughout the proceedings in the District Court by the Federal Public Defender's Office, which continues to sen/e as counsel on appeal.
. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471839/ | OPINION OF THE COURT
RENDELL, Circuit Judge.
Subcontractor Fleming Steel Co. (“Fleming”), and performance bond issuer Continental Casualty Co. (“Continental”), appeal orders of the District Court granting summary judgment, damages, and attorney’s fees in favor of prime contractor W.M. Schlosser Co., Inc. (“Schlosser”), on claims arising from a U.S. Navy construction contract.1 Schlosser cross-appeals, arguing that it was awarded insufficient *754interest. For the reasons discussed below, we will affirm.
We write for the benefit of the parties and only briefly summarize the relevant facts. The Navy awarded Schlosser a contract to construct a “hush house” at Naval Air Station Oceana in Virginia Beach, Virginia. A hush house is a test facility in which jet engines may be run at high power settings, and is designed to suppress the intense sound generated during such runs. Schlosser subcontracted with Fleming to produce sliding air intake doors for the facility, and Continental executed a performance bond on the subcontract. The parties agree that, under a choice of law provision, Virginia law governs the subcontract.
Key sound-suppressing components of the doors are 18 “splitter baffles,” made of stainless steel and covered in fiberglass cloth. The specifications in the prime contract for these baffles were incorporated into the subcontract. Section 13300 Paragraph 2.1.5.b required the fiberglass cloth to be precisely 0.0065 inches thick, and specified that “[n]otwithstanding any other requirements of th[e] contract, no other product will be accepted.” Paragraph 1.4.2.1 required Fleming to produce a full-sized pre-production specimen of a baffle that would “conform to all of the requirements of the contract including quality control, testing, form, fit, size and function and shall meet all of the requirements of the contract documents.” When approved by the Navy’s contracting officer, this specimen was to “serve as the reference for establishing the acceptability of all fabricated ... baffles.”
Fleming produced a sample baffle, and it is undisputed that this sample was approved by the Navy’s contracting officer. Fleming then began producing the baffles intended for installation in the door. Inspections revealed that heat from Fleming’s welding process burned away fiberglass cloth in certain places on nine of the production baffles. Re-inspection of the sample baffle revealed that the cloth on the approved sample also had burn spots. The Navy concluded that the burned baffles failed to meet specifications, and also determined that a repair method proposed by Fleming was inadequate. The Navy issued cure notice to Schlosser, which in turn issued cure notice to Fleming. Schlosser thereafter found Fleming to be in default, terminated the subcontract, and sought replacement baffles from another source.
Article 8 of the subcontract provided that if Schlosser terminated the subcontract due to Fleming’s breach, Fleming would be liable for the costs of completion, along with other damages and expenses. Article 29 provided that, if the contract was terminated by Schlosser for its own convenience, Fleming would be entitled to the actual costs of the work and labor in place, plus a certain allowance.
Fleming filed a diversity action in the United States District Court for the Western District of Pennsylvania for breach of contract against Schlosser, arguing that the termination was for convenience. Schlosser answered with a counterclaim for breach of contract against Fleming. Schlosser also filed a claim on an indemnification theory against Continental in the United Stated District Court for the District of Virginia, which was transferred and consolidated with the former action. After discovery and a series of rulings on various motions, the District Court granted partial summary judgment on behalf of Schlosser, deciding as a matter of law that the Navy’s approval of the sample baffle did not relieve Fleming from strictly complying with the written contract specifications. The District Court also granted summary judgment on behalf of Schlosser on the issue of liability. The District *755Court thereafter adopted the findings of a special master with regard to damages, and also awarded attorney’s fees, costs, and a portion of the prejudgment and post-judgment interest urged by Schlosser.
Fleming and Continental first challenge the District Court’s grant of summary judgment on behalf of Schlosser. The District Court had jurisdiction over this matter pursuant to 28 U.S.C. § 1332, and we have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District Court’s grant of summary judgment “is plenary, and we apply the same standard as the District Court.” Busch v. Marple Newtown Sch. Dist., 567 F.3d 89, 95 n. 7 (3d Cir.2009). Summary judgment should be granted only if there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law. Id.
Appellants’ position on what legal effect the Navy’s approval of the sample baffle should have on Fleming’s responsibilities required clarification in the District Court, and may not have been entirely consistent. As Schlosser frames Appellants’ argument, Appellants assert that the Navy’s approval of the sample waived any specifications that would otherwise have been violated by the burned fiberglass cloth. At least before us, Appellants do not argue waiver, but instead contend that, because the contract did not specifically require the absence of burn marks, there is a genuine issue of fact as to whether the baffles met the written contract specifications. We are not persuaded by either argument.
Fleming was required under Section 13300 Paragraph 1.4.2.1 to produce a specimen that “conform[ed] to all of the requirements of the contract.” For all baffles, Paragraph 2.1.5.d established that “[njotwithstanding any other requirements of th[e] contract,” including presumably the specimen approval requirement, any fiberglass cloth that failed to meet the written specifications was unacceptable, (emphasis added). Moreover, the subcontract incorporated 48 C.F.R. § 52.246-12 (Aug.1996), a clause of the Federal Acquisition Regulation governing the inspection of construction, which provides that “Government inspections and tests are for the sole benefit of the Government and do not ... relieve the Contractor of responsibility for providing adequate quality control measures,” and also that an inspector is not “authorized to change any term or condition of the specification without the Contracting Officer’s written authorization.” (emphasis added). There is no evidence that the contracting officer gave any written authorization to alter the fiberglass specifications. Thus, the District Court correctly concluded that, as a matter of law, Fleming was required to comply with all contract specifications, notwithstanding the Navy’s approval of the specimen baffle.
We also conclude that there is no genuine issue as to whether the baffles with burned fiberglass cloth failed to satisfy the written contract specifications. It is undisputed that Fleming’s welding process burned fiberglass cloth away in certain places on the splitter baffles in question, thus altering the thickness of the cloth. It is also undisputed that Paragraph 2.1.5.d of Section 13300 of the subcontract required the fiberglass on the baffles to be 0.0065 inches in thickness. Under any reasonable interpretation of the contract, Fleming failed to meet, at a minimum, the unambiguous thickness specification of the contract at these burn points.2 For these reasons, we will affirm the order of the *756District Court granting partial summary judgment on the issue of the Navy’s approval of the specimen, and summary judgment on behalf of Schlosser on the issue of liability.
Next, Appellants argue that the District Court erred by entering judgment on damages based on the recommendations of the special master. Schlosser contends that Appellants’ arguments on appeal are improper because Appellants failed to submit any contrary evidence relating to damages, and never requested a hearing or trial on the issue before the District Court. Assuming, arguendo, that Appellants’ arguments are properly before us, we have no basis to disturb the District Court’s ruling. We will uphold the factual findings of a special master that are adopted by a district court, unless the findings are clearly erroneous. Arco Pipeline Co. v. SS Trade Star, 693 F.2d 280, 280-81 (3d Cir.1982). The special master carefully documented and supported its computation of damages, and, after making certain deductions from the amount urged, recommended an award in the amount of $640,010.43. The District Court adopted this figure and, after deducting the balance due Fleming under the subcontract, arrived at a damages figure of $354,646.43. Upon careful review of the record, we find no defect in the computation of damages, by either the special master or the District Court, that could amount to clear error.
Finally, Appellants argue that the District Court erred by awarding attorney’s fees to Schlosser. Appellants contend that Fleming could not be liable for attorney’s fees under the terms of the subcontract, and that the liability of Continental, as surety, could be no greater than the liability of Fleming. Schlosser eon-tends, inter alia, that attorney’s fees were available directly against Continental under the express terms of the performance bond. As the District Court noted, “Under Virginia law, the obligation of the of the surety is measured by that of the principal, ‘unless the bond provides otherwise, or the surety has been released by some act of the obligee.’ ” (App. 62) (quoting Cohen v. Mayflower Corp., 196 Va. 1153, 86 S.E.2d 860, 866 (1955)). The performance bond expressly provided that, in the event of Fleming’s breach, Continental would be liable to Schlosser for “all fees, damages, and expenses, including costs and attorney’s fees.” (App. 138.) Since Continental was liable for attorney’s fees under the terms of the performance bond, the District Court did not err in awarding such fees to Schlosser.
Schlosser cross-appealed two judgment orders,3 arguing that it should have been awarded more prejudgment and post-judgment interest. We have carefully reviewed the record and cannot say that the District Court erred in a conclusion of law or abused its discretion with regard to the computation of interest.
For the reasons discussed above, we will AFFIRM the Orders of the District Court.
. The specific orders challenged by Appellants are the Order of July 10, 2006, 2006 WL 1892699, granting summary judgment, the Order of July 14, 2006, 2006 WL 1997365, dismissing objections to the special master’s report and recommendations, the Judgment Order of July 14, 2006 entering judgment in favor of Schlosser, the Order of August 7, 2006 denying a motion by Appellants for reconsideration, and the Judgment Order of October 21, 2008, 2008 WL 4722511, granting additional damages pursuant to a motion by Schlosser.
. Although its decision is not under review in the instant appeal, the District Court reached this same conclusion when it denied a motion for summary judgment by Fleming by Order of August 19, 2005.
. The specific orders challenged by the Cross-Appellant are the Judgment Order of October 21, 2008, and the Second Amended Judgment Order of February 5, 2009, 2009 WL 291165. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471841/ | OPINION
SLOVITER, Circuit Judge.
Appellant Jonas Gillespie pled guilty in the United States District Court for the Western District of Pennsylvania to (1) conspiracy to distribute and possess with the intent to distribute cocaine base in violation of 21 U.S.C. § 846; (2) possession with the intent to distribute in excess of five grams of cocaine base in violation of 21 U.S.C. § 841(a)(1); (3) possession with the intent to distribute in excess of 500 grams of cocaine in violation of 21 U.S.C. §§ 841(a)(1); (4) use of and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1); and (5) felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The Court sentenced Gillespie to 322 months incarceration — 262 months for the drug trafficking and felon in possession of a firearm offenses, and sixty additional months for using and carrying a firearm in furtherance of the drug-trafficking crime. Six years later, the District Court vacated the consecutive sixty-month term resulting from Gillespie’s 18 U.S.C. § 924(c)(1) violation, thereby reducing Gillespie’s total sentence to 262 months. In arriving at Gillespie’s sentence, the District Court treated Gillespie as a “career offender” pursuant to U.S.S.G. § 4B1.1.1 In April 2008, Gillespie filed a *758pro se motion seeking a reduced sentence, which the District Court denied. We will affirm.2
I.
The District Court did not err in calculating Gillespie’s Guidelines sentence.3 Section 4B1.1, at the time of Gillespie’s sentencing and now, mandates that a career offender’s offense level be calculated in conjunction with the statutory maximum of the instant offense. In Gillespie’s case, this resulted in a base offense level of thirty-seven, which after a three-level reduction for acceptance of responsibility, led to a total offense level of thirty-four, and a criminal history of VI because of his career offender status. Under § 4B1.1, “if the offense level for a career offender ... is greater than the offense level otherwise applicable, the offense level from [the career offender subsection] shall apply.” U.S.S.G. § 4B1.1 (1993). Thus, because the offense level mandated by the career offender provision, thirty-four, was higher than that required for the offenses to which Gillespie pled guilty, his sentence was calculated in compliance with the career offender guideline.
In his appeal from the District Court’s denial of his motion for a reduction of his sentence, Gillespie relies on 18 U.S.C. § 3582(c)(2), which provides that a court may reduce a defendant’s sentence if the “defendant ... has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission....” He argues here, as he did in the District Court, that his sentence was based in part on the crack cocaine guidelines of U.S.S.G. § 2D 1.1, which were reduced in 2007 when the Sentencing Commission adopted Amendment 706. Amendment 706, later made retroactive by the Sentencing Commission, changed the drug quantity table in U.S.S.G. § 2D1.1 to decrease by two the base-offense level assigned to each threshold quantity of cocaine base. See U.S.S.G. § 2D1.1; U.S.S.GApp. C, Amend. 706 (Nov. 1, 2007).
II.
Notwithstanding the extensive statutory analyses in Gillespie’s brief, his sentence was not, as he avers, “based in part or at least to some extent influenced by,” the crack cocaine guidelines. Appellant’s Br. at 24. Gillespie’s argument is flawed because, as the District Court explained, his sentence was based entirely on the career offender provision. This court recently held in United States v. Mateo, 560 F.3d 152, 155 (3d Cir.2009), that a district court has no authority under 18 U.S.C. § 3582(c)(2) to reduce a career offender’s sentence pursuant to Amendment 706. Gillespie’s base offense level is 34 as mandated by the career offender provision, and unaffected by Amendment 706. Accordingly, 18 U.S.C. § 3582(c)(2) does not authorize a reduction in his sentence. To put it simply, Amendment 706 “ ‘provides no benefit to career offenders.’” Mateo, 560 F.3d at 155 (quoting United States v. Forman, 553 F.3d 585, 589 (7th Cir.2009)). Accord United States v. Caraballo, 552 F.3d 6, 11 (1st Cir.2008); United States v. Sharkey, 543 F.3d 1236, 1238-39 (10th Cir.*7592008); United States v. Moore, 541 F.3d 1323, 1327-28 (11th Cir.2008).
III.
For the above-stated reasons, we will affirm the District Court’s order denying Gillespie’s motion requesting reduction of sentence.
. Gillespie met the criteria for a career offender because he was 33 years old when he *758committed the offenses in this case; some of the felonies in this case were controlled substance offenses; and he had at least two prior felony convictions for controlled substance offenses and/or crimes of violence.
. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
. Gillespie was sentenced under the 1993 version of the U.S. Sentencing Guidelines Manual. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471843/ | OPINION
SMITH, Circuit Judge.
Appellant Dawud Bey pleaded guilty to one count of conspiracy to manufacture and distribute cocaine, in violation of 21 U.S.C. § 846. As part of his plea agreement, Bey stipulated that he distributed and agreed to distribute more than 3.5 kilograms but less than 5 kilograms of cocaine in furtherance of the conspiracy. After calculating Bey’s sentencing range to be 108-135 months of imprisonment, the District Court sentenced Bey to 120 months of imprisonment. Bey now appeals his sentence.1 We reject his claims.
First, the District Court’s application of a three-level increase in Bey’s offense level for obstruction of justice2 was not in violation of the Fifth and Sixth Amendments. “Once a jury has found a defendant guilty of each element of an offense beyond a reasonable doubt, he has been constitutionally deprived of his liberty and may be sentenced up to the maximum sentence authorized under the United States Code without additional findings beyond a reasonable doubt.” United States v. Grier, 475 F.3d 556, 561 (3d Cir.2007) (en banc). Here, Bey’s sentence of 120 months of imprisonment is below the statutory maximum of 40 years. See 21 U.S.C. §§ 841(b)(1)(B), 846. Our opinion in Grier held that facts related to enhancements may be proven by a preponderance of the evidence. 475 F.3d at 568 (“We will affirm the District Court’s decision to apply the preponderance standard to all facts relevant to the Guidelines....”). Therefore, we reject Bey’s argument that the Government had the obligation of proving beyond a reasonable doubt that he obstructed justice.
Second, the District Court did not err in relying on hearsay evidence to find that Bey obstructed justice. As Bey admits, the Federal Rules of Evidence do not apply in sentencing proceedings. Fed. R.Evid. 1101(d)(3). Instead, evidence presented at sentencing must have a “ ‘sufficient indicia of reliability to support its *761probable accuracy.’ ” United States v. Miele, 989 F.2d 659, 668 (3d Cir.1993) (quoting U.S. Sentencing Guidelines Manual § 6A1.3(a)). Here, we believe that the hearsay evidence — testimony from FBI Agent Kevin Lewis about his interviews with the co-conspirators that Bey allegedly threatened — was sufficiently reliable. The co-conspirators made their out-of-court statements to Agent Lewis during the course of his investigation into Bey’s alleged threats. Had they been dishonest, the co-conspirators would have exposed themselves to charges of making false statements. Thus, they had every reason to be honest with Agent Lewis. Additionally, recorded conversations between Bey and others corroborated Agent Lewis’ testimony. Therefore, the District Court’s reliance on hearsay evidence at sentencing was not in error.
Third, Bey’s sentence was not unreasonable. On appeal, Bey’s sole argument is that a co-defendant who also threatened -witnesses received a lesser sentence for that conduct, creating an unwarranted sentencing disparity. Even assuming that Bey’s co-defendant was given a lesser sentence for his threats, this is not enough to show that Bey’s sentence was unreasonable. United States v. Parker, 462 F.3d 273, 276-77 (3d Cir.2006) (“[Disparity of sentence between co-defendants does not of itself show an abuse of discretion.” (internal quotations and citation omitted)). As a result, we will affirm the sentence.
. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
Bey's plea agreement contained a limited appellate waiver that the Government does not invoke on appeal. Accordingly, Bey's appellate waiver does not bar our review of any of the issues that he has raised. See United States v. Goodson, 544 F.3d 529, 534 (3d Cir.2008) ("[A]n appellate waiver may have no bearing on an appeal if the government does not invoke its terms.”).
. The District Court found that, while in pretrial custody, Bey threatened three co-conspirators in order to dissuade them from cooperating with the Government. As a result, the District Court concluded that Bey had obstructed justice, and increased his offense level by two levels pursuant to U.S. Sentencing Guidelines Manual § 3C1.1, and one level pursuant to U.S. Sentencing Guidelines Manual § 5K2.0. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471845/ | OPINION
SMITH, Circuit Judge.
This case arises from a 2006 land sale agreement between Peter and Anne Scott (“the Scotts”) and Stephen and Nancy Hoke Turner (“the Turners”). The Scotts sued the Turners, claiming that they breached a contract to purchase land located in Freedom Township in Adams County, Pennsylvania. The District Court granted summary judgment for the Turners. This timely appeal followed. We will affirm the judgment of the District Court.1
Section 403 of Freedom Township’s Municipal Subdivision and Land Development Ordinance (“the Ordinance”) requires roadways in the Township to meet certain specifications, including minimum right-of-way widths of 50 feet and minimum cart-way widths of 32 feet. On February 11, 1993, landowners Bradley and Mary Yohe obtained a variance to these requirements from the Freedom Township Board of Supervisors (“the Board”). That variance permitted a 16 foot wide gravel “right-of-way” connecting one segment of the Yohes’ lot to Pumping Station Road. The variance excused the right-of-way’s non-conformance with the Ordinance so long as certain conditions were met. First, the variance was limited to the “period of time during which the [Yohes] own[ed] all of the land.” The variance did “not extend to subsequent owners.” Second, if the land in question were ever “subdivided to provide for more than three residential building lots,” then the variance would be “void,” and the right-of-way would have to be upgraded to conform with the Ordinance.
In December of 1993, the Yohes sold a portion of their land (“Lot 2”) to the Scotts, while retaining part of it (“Lot 1”) for themselves. The Scotts built a residence on Lot 2, which was serviced by the right-of-way through Lot 1. The Yohes later subdivided Lot 1, such that there are currently four residential lots on the tract of land described in the variance.
In October of 2006, the Scotts agreed to sell Lot 2 and an adjoining lot to the Turners for $1.25 million. That agreement required the Scotts to convey “good and marketable” title to the land. Pursu*763ant to the agreement, the Turners paid a $50,000 deposit into escrow. Upon learning of the variance, however, the Turners refused to complete the sale. The Scotts sued the Turners for breach of contract; the Turners counterclaimed for the return of their deposit. Both parties moved for summary judgment. The District Court held that the Scotts, not the Turners, had breached the agreement by failing to provide “marketable title” to the land. The Court granted summary judgment in favor of the Turners and ordered the return of them deposit. The Scotts appealed.
Pennsylvania courts have defined “marketable” title as title “that is free from liens and encumbrances and which a reasonable purchaser, well informed as to the facts and their legal bearings ... would in the exercise of that prudence which businessmen ordinarily bring to bear upon such transactions, be willing to accept and ought to accept.” Barter v. Palmerton Area School Dist., 899 Pa.Super. 16, 581 A.2d 652, 654 (1990). Under Pennsylvania law, title is unmarketable if it would expose “the party holding it to litigation.” Swayne v. Lyon, 67 Pa. 436 (1871); see also Moyer v. De Vincentis Constr. Co., 107 Pa.Super. 588, 164 A. 111, 112 (1933) (“one is not compelled to purchase under an agreement for sale of real estate ... where the title is in such condition that the purchaser will be exposed to litigation”). We agree with the District Court that the Scotts’ title was unmarketable because the variance permitting the gravel right-of-way expired, leaving the property owner exposed to a lawsuit by the Township to conform the right-of-way to the Ordinance. See Pennsylvania Municipalities Planning Code, 53 P.S. §§ 10515.1, 10515.3 (empowering municipalities to sue in law or equity to enforce subdivision and land development ordinances).
The variance clearly states that “in the event the acreage shown ... is further subdivided to provide for more than three (3) residential building lots, then this variance shall be void” and the cartway improved to conform to the Ordinance. This language does not require that the right-of-way serve more than three lots, as the Scotts claim. The mere creation of the fourth lot terminated the variance, to the extent that the Scotts’ 1993 purchase had not already done so.2
The Scotts admit that there are presently four residential lots on the land described in the variance. Therefore, the variance has expired. Given the non-conforming right-of-way and the expired variance, the township could sue the owners of the property and force them to upgrade the road at any time. As a results, the Scotts’ title was unmarketable, and the Turners’ refusal to consummate the sale was not a breach of contract. See Moyer, 164 A. at 112 (holding title unmarketable where the building to be sold was built in violation of a local ordinance, as the buyer “could not take possession without immediately becoming a violator of the law and subject to suit”). Rather, the Scotts *764breached the land sale agreement by failing to provide marketable title. We will therefore affirm the District Court’s order granting summary judgment for the Turners.
. The Scotts filed their lawsuit in the Adams County Court of Common Pleas. The Turners properly removed the case to the United States District Court for the Middle District of Pennsylvania, pursuant to 28 U.S.C. §§ 1441 and 1446. The District Court had jurisdiction over the Turners' counterclaim under 28 U.S.C. § 1367. We have jurisdiction under 28 U.S.C. § 1291 and "exercise plenary review over the District Court’s grant of summary judgment.” Shuman ex rel Shertzer v. Penn Manor School Dist., 422 F.3d 141, 146 (3d Cir.2005) (internal citations omitted). Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The facts must be viewed in the light most favorable to the non-moving party and all reasonable inferences from the evidence must be drawn in that party's favor. Conopco, Inc. v. United. States, 572 F.3d 162, 165 (3d Cir.2009).
. Arguably, the variance expired when the Yohes sold part of the land to the Scotts. The variance plainly stated that it was "limited to the period of time during which [the Yohes] own all of the land ... and [did] not extend to subsequent owners.” The Scotts claim that this provision should not void the variance because the Board voted in November of 2007 to honor the variance notwithstanding the 1993 sale. We need not decide the legal import of the Board's vote, since we believe that in any event, the variance expired with the creation of the fourth lot. We note that even though the Board voted not to enforce the first condition of the variance, it reaffirmed the three-lots-only condition. The minutes of the November 2007 meeting reflect the Board’s continuing view that "[i]f a fourth lot was ever subdivided, (with Board approval needed) the road would have to comply with the road specifications required by the township.” | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471847/ | OPINION
PER CURIAM.
Ray Dean Colburn, an inmate at Columbia County Prison, in Bloomsburg, Pennsylvania, appeals pro se from the District Court’s dismissal of his petition for a writ of habeas corpus. Because we conclude that this appeal presents no substantial question, we will summarily affirm. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
On July 16, 2007, Colburn entered a plea of guilty to conspiracy to distribute a controlled substance. In April 2008, while awaiting sentencing, Colburn filed this federal habeas petition pro se, claiming a violation of due process, a violation of Federal Rule of Criminal Procedure 5, and ineffective assistance of counsel. The District Court determined that, whether filed pursuant to 28 U.S.C. § 2255 or § 2241, the petition was premature, and dismissed the petition without prejudice. The Dis*765trict Court also noted that Colburn had ignored its emphatic instructions that all claims must be filed through his attorney, and directed the Clerk of the District Court not to docket any further pro se filings in this matter while Colburn is represented by counsel.
Colburn timely appealed. We have jurisdiction over the appeal under 28 U.S.C. § 1291 and § 2258(a), and we exercise plenary review over the District Court’s order.1 See Okereke v. United States, 307 F.3d 117, 119 (3d Cir.2002).
Colburn did not specify whether he filed his petition pursuant to § 2255 or § 2241. Because Colburn has not yet been sentenced, § 2255 does not apply.2 Relief is available under § 2241 “only where the petitioner demonstrates that some limitation of scope or procedure would prevent a § 2255 proceeding from affording him a full hearing and adjudication of his -wrongful detention claim.” Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir.2002). As the District Court explains, once he is sentenced, Colburn may pursue his claims first on direct appeal and then through a petition for a writ of habeas corpus under § 2255.
We agree with the District Court that Colburn’s petition, filed before he was sentenced, is premature. Under United States v. Vampire Nation, 451 F.3d 189, 206 (3d Cir.2006), the District Court acted within its authority when it precluded Col-burn from filing pro se motions in this matter while represented by counsel. We conclude that the appeal presents no substantial question. Accordingly, we will summarily affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.
. A certificate of appealability is not required for this appeal. See 28 U.S.C. § 2253; see also United States v. Baptiste, 223 F.3d 188, 189 n. 1 (3d Cir.2000) (a certificate of appealability is not required by statute, rule, or case law to appeal from a denial of a writ of error coram nobis under 28 U.S.C. § 1651(a)).
. 28 U.S.C. § 2255(a) applies to "[a] prisoner in custody under sentence of a court established by Act of Congress...." | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471851/ | OPINION
SLOVITER, Circuit Judge.
Appellant Daniel Callaghan appeals the District Court’s grant of summary judgment to appellee Haverford Township (“Township”) on his claims under the Americans with Disabilities Act (ADA) and the Pennsylvania Whistleblower Law.1
I.
Callaghan began working for the Township in 1991, and by 1994 he was a “crew leader” who oversaw five to fifteen employees maintaining open fields and areas along roadways in the Township. In February 2005, at the direction of his physician, Callaghan took a leave of absence from that job because he was suffering from work-related stress and his diabetes was worsening. Callaghan claims that he experienced stress on the job because the employees that he supervised were unfit *769for duty, and that his concerns were ignored and disparaged by his supervisor, Michael English. Callaghan’s physician cleared him to return to work in March 2005, but instructed him to avoid stress and confrontation.
Upon his return to work, Callaghan was provided a choice to work as a painter or to assist the (temporary) highway inspector, Robert Lawson. He chose to work with Lawson. After about two or three weeks, he was reassigned to work alone filling potholes.
Callaghan claims he suffered additional stress when his supervisor, Charles Fa-lance, told a Township employee that Callaghan “won’t be filling potholes much longer.” App. at 103. His physician allegedly again recommended that he take a leave of absence. His physician also wrote a letter to the Township on August 9, 2005, which stated that Callaghan was “being treated for anxiety and depression related to his work” and that he “should be transferred to a less stressful situation” because the stress was “making his diabetes poorly controlled.” Supp.App. at 250. Callaghan returned to work in August 2005 and was reassigned again to a position in which he checked landscapers for proper licensing.
Callaghan contends that shortly after his return to work one of the Township commissioners told him to inform English that Lawson had previously been convicted of driving under the influence (DUI) and should not be assigned to the highway inspector position. Callaghan passed on this information to English. Around this same time in the late summer or early fall of 2005, Callaghan also reported to his supervisors that playground equipment in the Township was not properly inspected, that a Township employee had operated a snow plow truck without a proper license (although the offending employee had already been suspended on this ground), and that another Township employee was using pesticides without a proper license.
In October 2005, Callaghan applied for a full-time, permanent position for highway inspector. He refused to attend the interview for the position because he believed that the Township’s hiring procedure violated his union contract.
At the direction of the Township, Callaghan saw Dr. Marilyn Howarth for an independent medical evaluation. Dr. Ho-warth reported to the Township that Callaghan “has had a number of medical problems, which I believe have combined to make him currently unable to perform his work duties.” App. at 46. Callaghan was then placed on short-term disability. Dr. Howarth also recommended that Callaghan see a psychiatrist. He did so in November 2005, and his psychiatrist concluded that he should not return to work because of stress. Callaghan contends that in the summer of 2006, while he remained on leave, he was informed that Falance was telling other Township employees that Callaghan was “nuts” and “crazy.” SuppApp. at 66.
Although none of his treating physicians stated that he was unable to work at all, several did recommend that Callaghan be transferred to another department within the Township and/or receive medical treatment, including continuing mental health care. His psychiatrist diagnosed Callaghan with chronic depression and anxiety, and never released Callaghan for work or informed the Township of his limitations. Callaghan requested that the Township provide his physicians with job descriptions for available positions, but the Township failed do so.
Callaghan did not thereafter return to work for the Township, and after expiration of his sick leave and leave under the Family Medical Leave Act, the Township terminated his employment on September *77022, 2006. In February 2007, Callaghan obtained a job at the Philadelphia airport.
Callaghan filed this action in November 2006, alleging that the Township discriminated against him based on an actual or perceived disability in violation of the ADA and retaliated against him for whistleblow-ing in violation of the Pennsylvania Whis-tleblower Law. Following cross-motions for summary judgment, the District Court granted summary judgment to the Township on both claims.
II.
Callaghan first challenges the District Court’s conclusion that he was not disabled or perceived to be disabled for purposes of the ADA. The ADA prohibits an employer from discriminating against a qualified individual on the basis of a disability. See 42 U.S.C. § 12112(a). The term disability is defined as “(A) a physical or mental impairment that substantially limits one or more major life activities ...; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102.
Here, the only major life activity relevant is that of “working.” A person is substantially limited in the major life activity of working if s/he is “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.” 29 C.F.R. § 1630.2(3X3).
Callaghan contends that he raised a genuine issue of material fact as to whether he is disabled under the ADA because his treating physicians advised that he cannot tolerate work-related stress due to his chronic anxiety and diabetes, and that this limitation would restrict his ability to perform a broad range of jobs. However, none of his treating physicians stated that Callaghan was restricted from working a broad range of jobs. Quite the contrary; they stated that he could return to work for the Township provided that he was transferred to another department outside the supervision of the management personnel who had caused Callaghan’s stress and that he received continuing medical and mental health care. Cf. Aldrup v. Caldera, 274 F.3d 282, 287 (5th Cir.2001) (holding that plaintiff was not disabled under ADA where he alleged that he suffered depression caused by the stress of having to work with certain individuals because such allegations “would merely tend to show that he was unable to perform any job at one specific location, and is not evidence of [an] inability to perform a broad class of jobs”).
Further, Callaghan testified at his deposition that he could return to work in a position other than his crew leader assignment or even as a crew leader if he was promoted. He was also able to obtain new employment. Thus, we agree with the District Court that Callaghan was not disabled.
Callaghan next contends that the District Court erred in concluding that the Township did not regard him as disabled. An individual is regarded as disabled if either “(1) despite having no impairment at all, the employer erroneously believes that the plaintiff has an impairment that substantially limits major life activities; or (2) the plaintiff has a nonlimiting impairment that the employer mistakenly believes limits major life activities.” Tice v. Centre Area Transp. Auth., 247 F.3d 506, 514 (3d Cir.2001).
As evidence that the Township regarded him as disabled, Callaghan points to the facts that the Township ordered him to undergo an independent medical exam and “stonewalled” his requests that the Town*771ship provide descriptions of available jobs to his physicians to allow them to evaluate his ability to fulfill those jobs. However, we have held that independent medical examinations, such as the one to which Callaghan was subjected, are permitted under the ADA and therefore “will never, in the absence of other evidence, be sufficient to demonstrate that an employer ‘regarded’ the employee as substantially limited in a major life activity.” Tice, 247 F.3d at 515.
As to Callaghan’s contention that the Township blocked his attempts to return to work in 2006, the District Court had evidence before it that there was a mutual breakdown in communications at this time. In any event, we fail to see how the Township’s alleged failure to provide job descriptions to Callaghan’s physicians even remotely suggests that it regarded him as disabled. Indeed, we agree with the District Court that the Township’s response to the submissions of Callaghan’s physicians, including its earlier efforts to place Callaghan in a less-stressful position, “indicate that the Township believed Callaghan could perform jobs other than crew leader.” App. at 13.
Finally, Callaghan contends that the District Court erred in rejecting his state law whistleblower claim. Under the Pennsylvania Whistleblower Law, “[n]o employer may discharge, threaten or otherwise discriminate or retaliate against an employee ... because the employee ... makes a good faith report ... to the employer ... of wrongdoing or waste.” 43 Pa. Stat. Ann. § 1423(a). To prevail on his claim, Callaghan “must come forward with some evidence of a connection between the report of wrongdoing and the alleged retaliatory acts.” O’Rourke v. Commonwealth, 566 Pa. 161, 778 A.2d 1194, 1200 (2001).
We agree with the District Court that Callaghan failed to do so here because a significant period of time (at least eleven months) lapsed between the alleged acts of whistleblowing and his termination. Cf. Lutz v. Springettsbury Twp., 667 A.2d 251, 254 (Pa.Commw.Ct.1995) (rejecting whis-tleblower claim where employee was terminated several months after report of wrongdoing and there was no other evidence to connect the report and termination). Callaghan contends that the Township retaliated by altering his terms of employment well-prior to his termination. In support, he points to several factors, including his supervisors’ alleged failure to address his complaint that the employees he supervised as crew leader were unfit for duty (which did not materially affect the terms of Callaghan’s employment). See O’Rourke, 778 A.2d at 1197-99 (concluding that petty acts of intimidation and harassment by supervisors did not constitute retaliation against employee’s terms of employment). He also points to the Township’s order that he undergo an independent medical exam (which, as noted above, it was legally entitled to require), and the Township’s alleged failure to provide job descriptions to his physicians to allow them to evaluate whether he could return to work (which, again, was part of a mutual breakdown in communications). Callaghan simply fails to present any evidence that these acts by the Township, or his termination, were retaliation for his reports of alleged wrongdoing.
III.
For the above-stated reasons, we will affirm the District Court’s grant of summary judgment to Haverford Township.
. The District Court had jurisdiction over Callaghan's ADA claim under 28 U.S.C. § 1331 and supplemental jurisdiction over his state law claim under 28 U.S.C. § 1367. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review a grant of summary judgment de novo. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471854/ | OPINION OF THE COURT
RENDELL, Circuit Judge.
Christopher Phillips pled guilty to one count of distribution of child pornography, in violation of 18 U.S.C. § 2252A(a)(l). The District Court sentenced him to a within-Guidelines sentence of 240 months’ imprisonment and 10 years’ supervised release. On appeal, he argues that the District Court did not adequately consider the *773sentencing factors in 18 U.S.C. § 3553(a) and that the sentence was greater than necessary to accomplish the statutory sentencing goals. We conclude that the District Court appropriately considered the § 3553(a) factors, and we will affirm the District Court’s sentencing order.
Phillips was one of a number of men charged with child pornography offenses after the Delaware State Police executed a search warrant at the residence of Paul Thielemann. A forensic examination of Thielemann’s computer revealed transcripts of online chats between Thielemann and Phillips. The two men discussed child pornography and the sexual exploitation of children, and Thielemann suggested that Phillips abuse the 8-year-old victim, a child who was under Phillips’s control. The conduct that followed, memorialized in the chat transcripts, led to Phillips’s arrest and guilty plea.1
At sentencing, the District Court calculated the Guideline range. The base offense level was 32, under section 2G2.1(a) of the Guidelines, because Phillips had distributed child pornography in a way that caused a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of the conduct. The court assessed a four-level increase because the victim was a minor under the age of 12, and a two-level increase because the offense involved sexual contact. An additional two-level increase was applied because the offense involved distribution, and a final two-level increase was applied because the victim was in the custody and care of the defendant. The court reduced the total adjusted offense level of 42 down to 39, because Phillips accepted responsibility. He had no prior criminal record, and therefore a criminal history category of I. The court’s Guideline calculations yielded a range of 262-327 months. It recognized that because 20 years was the statutory maximum, the Guideline range became 240 months. Phillips does not challenge the Guideline calculation.
In the sentencing colloquy, the court acknowledged that Phillips had been the victim of childhood sexual abuse and that he had abused the victim only after multiple requests from Thielemann. However, the court noted, the victim was a young child in Phillips’s custody and under his control — not “an unidentified child whose exploitation has been multiplied many times over through distribution via the Internet.” (App.91.) The court said that it had sentenced the defendants in the related cases, including Thielemann, and that while it recognized individual factors weighing in favor of Phillips, it had no basis to determine which conduct — Phillips’s or Thielemann’s — was worse. Therefore, after considering the factors in 18 U.S.C. § 3553(a), the court found that a 240-month sentence “recognizes the need for punishment, deterrence, protection of *774the public and rehabilitation, and certainly is consistent ... with the other sentences handed down for all the other defendants .... ” (App.92.)2
We conclude that the District Court reasonably exercised its discretion. The sentence was procedurally reasonable: the District Court properly calculated the Guideline range, considered the § 3553(a) factors, and adequately explained the reasoning behind the sentence. It discussed the history and characteristics of Phillips; the nature and circumstances of the offense; the need for punishment, deterrence, protection of the public, and rehabilitation; the applicable Guideline range; and the need to avoid unwarranted disparities among defendants with similar records who were found guilty of similar conduct. The sentence was within the Guidelines, so the District Court did not need to explain any deviation. See United States v. Wise, 515 F.3d 207, 217 (3d Cir.2008) (citing Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)).
Since the District Court did not err procedurally, we review the substantive reasonableness of the sentence under an abuse of discretion standard, considering the totality of the circumstances. We affirm a sentence as long as it “falls within the broad range of possible sentences that can be considered reasonable in light of the § 3553(a) factors.” Gall, 128 S.Ct. at 597. A within-Guidelines sentence is more likely to be a reasonable one. Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Cooper, 437 F.3d 324, 331 (3d Cir.2006).
Phillips exploited a young child who was under his care by producing a webcam transmission depicting his sexual contact with her. He did this at the request of Thielemann, who promised him money for the images. Even defense counsel acknowledged that Phillips “bears a heavy responsibility for exploiting the child.... [H]e’s ultimately responsible for any damage that it may have caused.” (App.85.) While the District Court agreed that Phillips’s history and his initial resistance to Thielemann’s requests weighed in his favor, the fact that the victim was under his control meant that “I truly don’t have any reasoned basis to determine which conduct, yours or that of Mr. Thielemann[ ], is the worst.... I cannot sentence you to anything less than ... Mr. Thielemann, which is the statutory maximum of 240 months.”3 (App.91.)
The court considered the differences between Phillips and Thielemann, and concluded that while their actions may have been different, each man deserved the statutory maximum. Given the facts of the case, the District Court’s sentence of 240 months is within the broad range of possible sentences that can be considered reasonable under the § 3553(a) factors. The court made a reasoned and reasonable decision that the sentence was justified, and we will not disturb the sentence.
For the reasons set forth above, we will AFFIRM the Judgment and Commitment Order of the District Court.
. On June 16, 2006, Thielemann asked Phillips to turn on his webcam and put the victim on his lap, and Phillips complied. Thielem-ann offered Phillips money to expose his penis to the victim and to touch her genitals. Phillips accepted the offer, and confirmed that the victim had seen Thielemann's penis on the computer screen via the webcam. Thielem-ann suggested that Phillips pull up the victim's skirt and rub her chest under her shirt, which Phillips did. When Thielemann asked if Phillips had put his hand down the victim’s shorts, Phillips responded that he had. Thiel-emann then said that he wanted the victim to see him ejaculate, and proposed that Phillips sit the victim on his leg while he masturbated. A few minutes later, Phillips said that he had not enjoyed the encounter and that Thielem-ann shouldn’t worry about giving him anything in exchange.
After he was arrested, Phillips admitted that he had the chats with Thielemann, that he put the victim on his lap, and that it was possible that the victim viewed Thielemann's penis via the webcam. He claimed that when the victim was on his lap, he only touched her leg.
. Thielemann also received a sentence of 240 months imprisonment, which we have affirmed. United States v. Thielemann, 575 F.3d 265 (3d Cir.2009).
. Given that the Guideline range of 262-327 months — which takes into account Phillips's offense characteristics and criminal history— was well in excess of the sentence imposed on Phillips, we cannot hold, as Judge Ambro urges, that his sentence was substantively unreasonable. Moreover, the District Court’s analysis from a procedural standpoint was adequate. We can find no basis for requiring the court to do more than it did in assessing the § 3553(a) factors. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471855/ | AMBRO, Circuit Judge,
Dissenting.
I have significant concerns that the 20-year sentence for Christopher Phillips, the same as that of his more culpable co-defendant, Paul Thielemann, is procedurally and substantively flawed. I thus respectfully dissent.
I. Facts
The majority opinion sets out the bare facts that led to Phillips’s arrest, as well as the facts surrounding his subsequent guilty plea and sentencing. I add the following, which I consider relevant. Phillips had an extremely difficult upbringing, which included being repeatedly molested by his step-father when he was six and seven. According to the psychological evaluation presented by Phillips’s attorney, this left him with a desire “to satisfy the needs of another from whom he is desperately wanting acceptance” and an “extreme suggestibility” that makes him susceptible to manipulation. A44. Phillips’s sexual relationship with Thielemann began in 2006, during a period of difficulty with his girlfriend, and consisted almost entirely of interaction online (via webcam and web chats). Virtually from the start of their relationship, Thielemann began trying to coax Phillips into including in their sexual activities an eight-year-old girl under Phillips’s control.4
Initially, Phillips resisted. He stated categorically that he would not do that (“look im not going to do anything with [the] girl so I don’t know what to tell u,” A17), citing both moral objections (“its not the right thing to do,” A16), and fear of the legal consequences (“don’t think im going to try anything with her I like my freedome,” A18) as the basis for his position. Thielemann persisted. He tried to reassure Phillips by claiming (falsely) that he had had sex with his four-year-old niece multiple times and that each time she had forgotten. Thielemann then sent Phillips a photo of a three-year-old performing fellatio, claiming (again, erroneously) that he was the man in the photo. Phillips continued to be reluctant to go through with Thielemann’s suggestion, but, in a June 16, 2006 webcam chat, he relented. That single incident — the details of which are accurately recounted by the Majority5 — became the sole basis for Phillips’s conviction. When the web chat ended, Phillips wrote that “I really hated that but I tell you now I would never do it again.” A26.
Police found the chats on Thielemann’s computer in February 2007, after America Online detected a child pornography transmission by Thielemann to a third party. They raided Phillips’s home in March 2007, but found no child pornography. On January 10, 2008, Phillips pled guilty to transport of child pornography in violation of 18 U.S.C. § 2252A(a)(l). Thielemann, who was a co-defendant with Phillips, pled guilty to the same charge. The District Court sentenced both men to the statutory maximum of 20 years (the minimum was five)6 even though Thielemann had ex*776changed child pornography with seven friends and condoned it in online chats with them in addition to trying to manipulate Phillips into having sex with a young girl entrusted to his care.
Phillips was not charged with sexual abuse or presenting the live sexual performance of a minor, although these state law crimes describe Phillips’s offense better than the federal transmitting of child pornography charge.7 If he had been charged under state law, Phillips would have faced a very different sentence. Delaware imposes no mandatory minimum sentence for the sort of sexual contact with a minor in which Phillips engaged. 11 Del. C. §§ 1109(5), 4205(b)(2). It requires as little as two years for a live performance conviction. See 11 Del. C. §§ 768, 4205(b)(7).
II. Discussion
In relevant part, 18 U.S.C. § 3553(a) commands the District Court to consider the following factors in sentencing: (1) offense and offender characteristics; (2) the need for a sentence to reflect the basic aims of sentencing, namely (a) “just punishment” (retribution), (b) deterrence, (c) incapacitation, (d) rehabilitation; (4) the Sentencing Guidelines; (5) and the need to avoid unwarranted disparities (uniformity). Rita v. United States, 551 U.S. 338, 347-48, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). I have, as noted at the outset, significant concerns, both procedural and substantive, with the District Court’s application of these factors that lead me to disagree with the District Court and my panel colleagues.
A. Procedural Reasonableness
i. Omission and Misapplication of Factors
The District Court did not consider most of the sentencing factors and misapplied one that it did. Before we can affirm a sentence, we must be convinced that the District Court actually gave meaningful consideration to each factor; that it claims to have considered each is not enough. See United States v. Olhovsky, 562 F.3d 530, 547 (3d Cir.2009). Here, the District Court stated that it considered all the factors, but the record indicates that it decided its sentence on uniformity and retribution alone. It said to Phillips:
I believe you were the victim of childhood sexual abuse. Mr. Thielemann ... claimed that he was. I do not believe that, but I do believe you were.
I also understand from the record that Thielemann entreated you multiple *777times before you acquiesced in the conduct. ...
I have to balance that against the fact that the victim in this case was under your control and was not some unidentified child whose exploitation has been multiplied many times over through distribution via the Internet. And, quite frankly, when I look at all the other co-defendants and when I look at the pre-sentence report and what I have in front of me, I truly don’t have any reasoned basis to determine which conduct, yours or that of Mr. Thielemann’s, is the worse. And, therefore ... I cannot sentence you to anything less than that of Mr. Thielemann....
A91. As this (the District Court’s entire discussion of the sentencing factors) shows, the Court selected Phillips’s sentence by comparing him to Thielemann (and, to a lesser extent, his other co-defendants). It concluded that Phillips’s conduct was as bad as Thielemann’s because, although Thielemann goaded Phillips into it and (unlike Phillips) did not perform his actions against the backdrop of his own history of childhood sexual abuse, Phillips (unlike Thielemann) exploited someone in his care.
This near-exclusive focus on comparing Phillips to Thielemann was a misapplication of the uniformity factor. Co-defendant comparisons are certainly apt. But we have explained that “Congress’s primary goal in enacting [the uniformity factor] was to promote national uniformity in sentencing rather than uniformity among co-defendants in the same case.” United States v. Parker, 462 F.3d 273, 277 (3d Cir.2006). Going beyond purely local comparisons is especially important in a case like this one, where the facts are atypical for the underlying offense (distribution of child pornography). That uniqueness creates a need for more reference cases in order to be able truly to compare like to like and thus honor uniformity without minimizing the distinctive characteristics of the offender. Yet there is no indication that the District Court made any effort to consider nationwide sentencing. If it had done so, it would have discovered that there is no recent case in which a court sentenced a similar offender to the statutory maximum. A review of recent cases nationwide reveals that courts sentenced a similar offender to 10 years less than Phillips and a worse offender to 20 months less.
In 2007 (the full year preceding Phillips’s sentencing), courts nationwide reported only one case to the Sentencing Commission in which a defendant was sentenced under the same statute, Guideline, range, and enhancements as Phillips.8 Richard Hawes photographed his two-year-old granddaughter engaging in sexually explicit conduct. See Government’s Objection to Relief Requested in Defendant’s Motion for Bail Hearing at 1, United States v. Hawes, No. 05-cr-00117-PB-1 (D.N.H. Sept. 26, 2005). The District Court there sentenced him to 10 years less than Phillips. It thought that evidence suggested that Hawes was not a true pedophile, making him a reduced threat to the community, but that he nevertheless had shown a desire to engage in the offensive conduct. See Transcript of Sentencing at 11, id. (Mar. 21, 2007). If the District Court here had considered that case (the District Court in New Hampshire imposed Hawes’ sentence 13 months before the District Court imposed Phillips’s), *778it might have found the disparity in sentences between Phillips and Hawes troubling. The men appear similar, in that the sexual interest of both in children is in question and their offenses were unplanned. But unlike Hawes, Phillips showed no initiative and produced no permanent record of the child’s abuse.
Our Court recently affirmed a sentence of 220 months (20 less than Phillips’s) under the same statute, Guideline range, and enhancements for a man who videotaped himself violently sexually assaulting his girlfriend’s seven-year-old niece. See United States v. Valenzuela, 304 Fed.Appx. 986, 988 (3d Cir.2008).9 If the District Court had considered the sentence in that case (imposed four months before it sentenced Phillips), it might have found the disparity with Phillips’s sentence troubling. Unlike Phillips, Valenzuela, who acted on his own initiative, attacked his victim, repeatedly inserting his fingers into her vagina while she cried in pain.
In addition, I find no evidence that the District Court gave meaningful consideration to incapacitation. That factor supports a lesser sentence the lesser the threat posed by the defendant. The chats make clear that Phillips did not initiate the offensive conduct in this instance (and, in fact, that he only engaged in it with some reluctance and that he renounced the act immediately afterward). That would seem relevant to an assessment of the length of sentence required to protect society from Phillips. Yet there is no evidence that the District Court considered Phillips’s apparent lack of a predatory disposition in applying this factor.
Finally, the District Court did not appear to give meaningful consideration to rehabilitation. Phillips submitted a psychologist’s report that described a condition of “extreme suggestibility” that appears consistent with Phillips’s behavior in the chats. The report described Phillips as crying “freely” and reporting depression, guilt, sleep disturbance, fatigue, and weight loss as a result of confinement. A40. It concluded that “psychoeducational treatment combined with psychotherapy,” not imprisonment, will “allow [Phillips] a fuller understanding of the relationship between his victimization and his current charges.... ” A45. The Court never mentioned the report directly or these conclusions other than noting in passing that Phillips was sexually abused as a child. This is troubling because the report suggests that prison will not cure the condition that led to Phillips’s crime.
I would remand to allow the District Court to give more consideration to uniformity, incapacitation, and rehabilitation.
ii The District Court’s Possible Confusion Over Its Ability to Disagree with Guidelines Policy
I am further concerned on procedural grounds because the District Court seemed confused about the proper authority to accord the Sentencing Guidelines. Before we can affirm a sentence meted out by a district court, the record must inspire confidence in us that the court knows its powers. See U.S. v. Hawes, 523 F.3d 245, 256-57 (3d Cir.2008) (Weis, J., concurring); United States v. Rodriguez, 527 F.3d 221 (1st Cir.2008).
Before sentencing Phillips, the District Court said:
[W]hile I agree, quite frankly, that the sentencing guidelines can be applied in an egregious and unreasonable way with these crimes and I think something should be done about it, I have to look at the way I have sentenced everyone else [associated with Thielemann] in connec*779tion with their conduct vis a vis the sentencing guidelines.
A90. After sentencing Phillips, it said, “I certainly believe that there should be a legislative or a higher court than I adjustment [sic] in the sentencing guidelines in this case, but I decline to do that here.” A91. We might read these statements to say that the District Court disagrees with the Guidelines in general, but thinks that they are appropriate for Phillips. In that case, there is no procedural defect.
But we can just as easily read the statements to say that the Court did not think that it had complete discretion to vary Phillips’s sentence from the Guidelines’ calculation. If that is so, there is procedural error because, as the Supreme Court recently reiterated, a District Court may sentence below the Guidelines based solely on a policy disagreement with them. Spears v. United States, — U.S. -, 129 S.Ct. 840, 843, 172 L.Ed.2d 596 (2009).
The possibility that the District Court was not aware of its power to vary below the Guidelines as a matter of policy is particularly important in the child pornography context. District courts around the country are refusing to follow parts of the child pornography Guidelines because of policy disagreements with them. See, e.g., United States v. Grober, 595 F.Supp.2d 382, 390-94 (D.N.J.2008) (Guidelines range: 235 to 293 months—sentence: 60 months); United States v. Shipley, 560 F.Supp.2d 739, 744-46 (S.D.Iowa 2008) (Guidelines range: 210 to 240 months— sentence: 90 months); United States v. Hanson, 561 F.Supp.2d 1004, 1008-12 (E.D.Wis.2008) (Guidelines range: 210 to 262 months—sentence: 72 months); United States v. Baird, 580 F.Supp.2d 889, 894-96 (D.Neb.2008) (Guidelines range: 46 to 57 months — sentence: 24 months).
Courts have good reason for disagreeing with the child pornography Guidelines. Congress tasked the Sentencing Commission with writing Guidelines that reflect the § 3553(a) sentencing factors based on empirical data on past sentencing and advancements in the knowledge of human behavior, among other things. See Rita, 551 U.S. at 347-49, 127 S.Ct. 2456. But starting in the mid-1990s, Congress effectively took control of the child pornography Guidelines away from the Sentencing Commission, increasing Guidelines ranges, and sentences, exponentially between 1996 and 2006. See Troy Stabenow, Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines (July 3, 2008), at 3-4, 12, available at http://www. fd.org/pdl_lib/childpornjulyfevision.pdf (last visited Jul. 29, 2009).
The Guidelines considered by the District Court in sentencing Phillips illustrate this inflation. In 1994, the base offense level for § 2G2.1 (production of child pornography), the Guideline provision under which the District Court sentenced Phillips, was 25. With then-applicable enhancements, Phillips’s Sentencing Guidelines range would have been 78 to 97 months, roughly a third of the range applied by the District Court in this case. In 1995, Congress directed the Sentencing Commission to increase the base offense level from 25 to at least 27. See Pub.L. 104-71 § 3. The Sentencing Commission raised it to 27; Phillips’s Guidelines range (again with then-applicable enhancements) would have been 97 to 121 months, still half of the current range. See Guidelines § 2G2.1(a) (1997). In 2004, Congress increased the statutory minimum for production offenses from 10 to 15 years. See Pub.L. 108-21 § 103. The Sentencing Commission responded by increasing the base offense level from 27 to the current 32 to “ensure” that the mandatory minimum would be met by the Guidelines in almost every case.10 Guidelines Supple*780ment to Appendix C at 59 (2006).
The increases do not appear to reflect a belief by the Sentencing Commission that underlying changes in child pornography criminality, empirical data on sentencing, or the state of the art in the behavioral sciences, required a change in the sentencing ranges. But Phillips’s Guidelines range jumped by more than 100% to its current level. Given this history, the District Court’s characterization of the Guidelines in this case as “egregious” is understandable. I would remand so that the Court may determine whether that egregiousness is reason enough to give Phillips a below-Guidelines sentence.
B. Substantive Reasonableness
“[Tjhere are times when a discussion of procedural error will necessarily raise questions about the substantive reasonableness of a sentence.” Olhovsky, 562 F.3d at 553. In this case, I believe that the District Court’s failure to apply all the sentencing factors in light of the Phillips’s individual characteristics and circumstances — -and, in particular, those circumstances that distinguish him from Thielem-ann — resulted in a sentence outside the bounds of what could be considered reasonable. See United States v. Tomko, 562 F.3d 558, 568 (3d Cir.2009) (en banc) (explaining that a sentence is substantively unreasonable only if “no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the [Djistrict [Cjourt provided”).
I do not mean to minimize what Phillips did. At oral argument, Phillips’s own counsel described Phillips’s actions as “horrific.” But I believe that to sentence him to the statutory maximum — based on (1) one incident, that (2) he agreed to engage in only after significant pressure from Thielemann, when (3) he is himself a victim of childhood sexual abuse that (according to at least one psychological evaluation) left him particularly vulnerable to the kind of manipulation that occurred here — displays a failure to perform the kind of finely grained analysis sentencing requires. As we have explained elsewhere, “[tjhe hideous nature of an offender’s conduct must not drive us to forget that it is not severe punishment that promotes respect for the law, it is appropriate punishment.... [Ujnduly severe punishment can negatively affect the public’s attitude toward the law and toward the criminal justice system.” Olhovsky, 562 F.3d at 551 (emphasis in original). In my view, casually throwing Phillips into the same boat as Thielemann, a predator who was the hub for all the criminal activity that spawned this case among others, risks doing exactly that.
* * * * * *
For these reasons, I would vacate Phillips’s sentence and remand to the District Court for resentencing. Because the majority affirms, I thus respectfully dissent.
. Because 18 U.S.C. § 3509(d) protects the identity of a child victim of sexual abuse or exploitation, we do not disclose it.
. I would add just one detail to the description provided in footnote one of the majority opinion — even after Phillips agreed to include the girl in their webcam session, he repeatedly resisted Thielemann's pleas to escalate the encounter. He refused Thielemann’s requests that he make the girl perform oral sex on him, touch his penis, or take off her skirt and seat her in his lap in her panties. A25. He also refused to allow the girl to see Thielem-ann ejaculate. A26. In addition, I note that, because the webcam images were not saved, we can only infer, based on the chat transcript, what actually happened during the June 16 incident.
.Although the men pled guilty to trafficking crimes, which carry a base offense level of 22, the District Court followed a cross-reference in the Guidelines for traffickers who cause *776minors to engage in sexual conduct. Pursuant to the cross-reference, it applied the base offense level of 32 normally used for production crimes. See U.S. Sentencing Guidelines § 2G2.2(c)(1). To Phillips, the District Court applied enhancements for a minor under age 12, sexual contact, and supervisory relationship, which, when combined with reductions for his acceptance of responsibility, resulted in an offense level of 37 and a sentencing range of 210 to 262 months. To Thielemann, the District Court applied enhancements for a minor under age 12, sexual contact, distribution, and use of a computer to solicit participation, leading (with the reduction for acceptance of responsibility) to an offense level of 39 and a sentencing range of 262 to 327 months. Because the statutory maximum was 240 months, the effective ranges were 210 to 240 for Phillips and 240 for Thielem-ann.
. The chief element that distinguishes a child pornography offense from other offenses relating to the sexual exploitation of children is that the former creates "a permanent record of the” child's exploitation, such that “the harm to the child is exacerbated by [its] circulation.” New York v. Ferber, 458 U.S. 747, 759, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). That element is missing here, as in this case the circulation (via webcam) of the images of the girl's exploitation was simultaneous to the underlying exploitation and no permanent record was ever created.
. I obtained this result from a search of Sentencing Commission databases. See Federal Justice Statistics Program: Defendants Sentenced Under the Sentencing Reform Act, 2007, Inter-University Consortium for Political and Social Research, available at http:// www.icpsr.umich.edu/, Study No. 24232 (and secondary databases referenced therein).
. I consult this opinion not for its prece-dential authority but as evidence of past sentencing relevant to consideration of uniformity-
. In tailoring § 2G2.1 to the statutory minimum for production, the Commission also did *780not take into account defendants, like Phillips, who are subject to that Guideline because of the cross-reference at § 2G2.2(c)(1). The statutory minimum for production does not apply to them. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471857/ | OPINION
SMITH, Circuit Judge.
Appellant Farren Mason, Sr., pleaded guilty to three counts of distribution and possession with intent to distribute five grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(l)(B)(iii). The District Court sentenced him to a within-Guidelines term of 57 months of imprisonment for each count, to be served concurrently. On appeal, he claims that his sentence is both procedurally and substantively unreasonable. We assess procedural and substantive reasonableness by applying the abuse-of-discretion standard. United States v. Tomko, 562 F.3d 558, 567 (3d Cir.2009) (en banc). “[A]n abuse of discretion has occurred if a district court based its decision on a clearly erroneous factual conclusion or an erroneous legal conclusion.” Id. at 567-68. We will affirm.1
First, we do not believe that the District Court misinterpreted the “minor role” provision of the Sentencing Guidelines. U.S. Sentencing Guidelines Manual § 3B1.2. “[T]he appropriateness of a minor *783role adjustment turns on ‘the relativity of [the defendant’s] conduct to the total [relevant conduct]..." United States v. Isaza-Zapata, 148 F.3d 236, 239 (3d Cir.1998) (quoting United States v. Headley, 923 F.2d 1079, 1085 (3d Cir.1991)). “The defendant bears the burden of demonstrating that ... the minor role adjustment should apply.” Id. at 240. Here, Mason claims that the District Court improperly focused on his offenses of conviction in determining whether he had a minor role, instead of considering the existence of a larger drug distribution scheme involving additional drug sales by others. But Mason never asserted in the District Court that he was a participant in some larger drug trafficking scheme. In his presentence position papers, Mason presented three reasons for a minor role reduction: 1) “he was selling his nephew’s cocaine at his nephew’s direction for a fee ... 2) “the nephew was selling crack over the course of at least August 2005 through September 2007 ... ”; and 3) “the nephew was the source of the crack cocaine in this case.... ” The second reason suggests that additional drug sales occurred; however, Mason never claimed that these additional drug sales were “jointly undertaken criminal activity” in which he was a participant, or that he otherwise “aided, abetted, counseled, commanded, induced, procured, or willfully caused” them. U.S. Sentencing Guidelines Manual § lB1.3(a)(l) (defining “relevant conduct” for Guidelines calculations). Indeed, the District Court notified Mason that he could, if he wanted to, argue at sentencing that “his nephew’s additional drug dealing is somehow relevant conduct in this case ...,” but Mason did not do so. Since Mason made no showing that he was involved in his nephew’s additional drug sales or that he otherwise participated in some larger drug trafficking scheme, the District Court properly focused its inquiry on whether the nephew’s supplying and directing of Mason’s drug sales warranted granting Mason a minor role reduction.
Second, we reject Mason’s claim that the District Court improperly gave the Guidelines presumptive weight. Mason places undue emphasis on the Court’s statement that “the sentencing guidelines ... would only be advisory to the Court, therefore, for good reason, the Court may sentence you outside of the recommended guideline range.” The Court made this statement at Mason’s guilty plea hearing almost three months prior to Mason’s sentencing. It sheds no light on whether the Court presumed the Guidelines to be reasonable at sentencing. Additionally, the Court’s statement does not demonstrate a belief that absent “good reason,” the Court could not sentence outside of the Guidelines range. At most, the Court’s statement reveals an adherence to the notion that “good reason” is sufficient to justify a variance from the Guidelines range; it does not show that the Court improperly thought that “good reason” was necessary to justify a variance. Similarly, we see no merit in Mason’s assertion that, by responding to a call for “leniency” with the statement “I’m bound by the law as well,” the Court suggested a belief that varying from the Guidelines was incompatible with the law.
Third, we see no error in the District Court’s refusal to vary from the Guidelines in order to account for the disparity between Guidelines’ recommendations for crimes involving crack and powder cocaine. Here, the District Court determined that “under the circumstances of this case, such a variance is unwarranted.” The Court then explained the relevant circumstances: “Defendant’s sentence has already been substantially reduced because of [18 U.S.C. § 3553(f) ] and ... [fjurther reduction is not warranted given the seriousness of *784the multiple offenses in this case.” These statements suggest that the District Court understood that it had the authority to vary from the erack-to-pow-der ratios contained in the Guidelines, but ultimately decided that such a variance was not warranted. Therefore, the District Court committed no error. See United States v. Wise, 515 F.3d 207, 222 (3d Cir.2008) (“[District courts [are] ‘under no obligation to impose a sentence below the applicable Guidelines range solely on the basis of the crack/powder cocaine differential,’ [but] a district court ‘errs when it believes that it has no discretion to consider the crack/powder cocaine differential ....’” (quoting United States v. Gunter, 462 F.3d 237, 248 (3d Cir.2006))).
Fourth, our review of the record reveals that the District Court adequately “acknowledge[d] and responded] to any properly presented sentencing argument which has colorable legal merit and a factual basis.” United States v. Ausburn, 502 F.3d 313, 329 (3d Cir.2007). The Court pointed out that the Bureau of Prisons could adequately treat Mason’s medical condition, rendering a reduction in sentence unnecessary “regardless of whether defendant’s request is treated as a request for departure or a variance....” As noted above, the Court acknowledged and responded to Mason’s request for a variance due to the crack-to-powder ratios. And we see no problem with the District Court’s failure to specifically mention Mason’s employment history and family ties. Mason cited both in his plea for leniency. Therefore, the Court’s specific refusal to grant a variance based on leniency alone was ample acknowledgment and response.2 Indeed, the District Court has provided us with “sufficient justifications on the record to support the sentencing conclusions.” United States v. Levinson, 543 F.3d 190, 196 (3d Cir.2008).
Finally, we believe that Mason’s within-Guidelines sentence of 57 months of imprisonment for each count to be substantively reasonable. Accordingly, we will affirm the District Court’s judgment. See Tomko, 562 F.3d at 568 (“[I]f the district court’s sentence is procedurally sound, we will affirm it unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.”).
. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
. On appeal, Mason complains that the District Court also overlooked other facts at sentencing. We do not agree. Facts like Mason's age, criminal history points, and strained finances were detailed in the Presen-tence Investigation Report, which the District Court carefully read and considered. Since Mason did not cite to these facts again at sentencing, the District Court needed to do nothing more. Tomko, 562 F.3d at 568 ("A sentencing court does not have to 'discuss and make findings as to each of the § 3553(a) factors if the record makes clear the court took the factors into account in sentencing.’ " (quoting United States v. Cooper, 437 F.3d 324, 329 (3d Cir.2006))). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471859/ | OPINION OF THE COURT
FUENTES, Circuit Judge:
Appellants Sat Bahl, William Browning, Jorge Puente, and Iretha Nolls appeal the decision of the District Court finding that they were not entitled to absolute or qualified immunity from Appellees’ procedural due process claim. The dispute in this case centers around the March 18, 2004 *786seizure by law enforcement officials of three minor children from Appellees’ home and actions taken by various Appellants théreafter concerning the custody of the children. At issue in this appeal is whether Appellants — two administrators and two caseworkers employed by Monroe County Children and Youth Services (“MCCYS”) — were entitled to absolute or qualified immunity in connection with the allegedly unconstitutional delay between the date when the children were seized and the date that a post-deprivation hearing was convened. The District Court concluded that Appellants were not entitled to absolute or qualified immunity. For the reasons that follow, we conclude that Appellants were entitled to qualified immunity, and will reverse.
I.
Because we write exclusively for the parties, we discuss the underlying facts and procedural history only to the extent necessary to resolve the issues on appeal. In March 2004, Robert and Lynn Jarovits resided in a home in Monroe County, Pennsylvania, along with their adult son, Erik Jarovits; their adult daughter, Gabrielle Jarovits; their two minor children, Matthew and Dedric Jarovits; and Gabrielle’s minor child, Marcella Parker. For a period leading up to March 2004, the Jaro-vits residence was under surveillance by various federal, state, and local law enforcement agencies because Erik Jarovits was selling crack cocaine in and out of the home. FBI agents arrested Erik Jarovits outside of a Monroe County restaurant on March 12, 2004, charging him with selling and distributing crack cocaine.
On the same day as the arrest, law enforcement officers sought and obtained a warrant to search the Jarovits residence, and they executed the warrant later that evening. The officers found and seized crack cocaine and marijuana in two rooms of the home during the search. Believing that the presence of drugs and the “filthy” state of the residence rendered the home unsuitable for the three minor Jarovits children, (App.154), police officers reported the matter to MCCYS.
On March 18, 2004, six days after the search, two employees of MCCYS, Appellant Jorge Puente and Nicole Mellwaine, accompanied by two police officers, inspected the Jarovits residence. Conditions in the home were squalid: the floors were covered with garbage, pornographic materials and animal feces; the refrigerator was full of rotting food; and the upstairs bathroom was unsanitary.1 Additionally, the inspecting officials discovered marijuana on a bedroom table. Based upon the conditions they observed in the Jarovits residence, as well as the fact of Erik Jarovits’ prior drug dealing activities in the home, Puente and Mellwaine determined that it was in the best interests of the minor children for the agency to take protective custody of the children and to initiate dependency proceedings in the Court of Common Pleas. Puente and Mellwaine, with the assistance of the two police officers accompanying them, removed the three minor children from the Jarovits residence and transported them to the MCCYS office.2
*787Appellees filed the Complaint in this action on November 18, 2004 in the United States District Court for the Middle District of Pennsylvania. Although Appellees asserted a wide variety of claims premised upon federal and state law against numerous defendants, the only claim at issue in this appeal (and the only claim we address herein) is their claim, asserted pursuant to 42 U.S.C. § 1983, that because more than seventy-two hours elapsed between the date when the children were seized and the date when the court convened a hearing to address the propriety of the seizure, MCCYS employees Bahl, Browning, Puente and Nolls violated Appellees’ procedural due process rights. In support of their due process claim, Appellees relied upon a provision of Pennsylvania law which provides that when a child has been taken into protective custody, “[a]n informal hearing shall be held promptly by the court or master and not later than 72 hours after the child is placed in detention or shelter care to determine ... whether to allow the child to remain in the home would be contrary to the welfare of the child ...” 42 Pa. Cons.Stat. Ann. § 6332(a) (West 2001 & Supp.2009).
Appellants moved for summary judgment as to the claims asserted in the Complaint, arguing with respect to Appellees’ due process claim that they were entitled to absolute and qualified immunity. In its October 10, 2007 opinion, the District Court held, inter alia, that Appellants were not entitled to absolute or qualified immunity and denied the motion for summary judgment with respect to the due process claim. Appellants subsequently filed this appeal, in which they contest only the District Court’s conclusion that they are not entitled to absolute or qualified immunity. “We have jurisdiction pursuant to the collateral order doctrine, see Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), and our review is plenary, see Larsen v. Senate of Cmwlth. of Pa., 154 F.3d 82, 87 (3d Cir.1998), cert. denied, 525 U.S. 1144, 119 S.Ct. 1037, 143 L.Ed.2d 45 (1999).” Rouse v. Plantier, 182 F.3d 192, 196 (3d Cir.1999).
II.
As we now explain, we conclude that Appellants were entitled to qualified immunity from Appellees’ due process claim, and that summary judgment as to that claim should have been entered in Appellants’ favor.3 The doctrine of qualified immunity “balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, — U.S. -, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009). In service of these dual interests, *788the doctrine immunizes government officials from liability and from suit “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).
A government official’s entitlement to qualified immunity turns on two considerations: whether the plaintiff has alleged that the defendant violated a constitutional right, and “whether the right that was violated was clearly established, or, in other words, ‘whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’ ” Curley v. Klem, 499 F.3d 199, 206-07 (3d Cir.2007) (quoting Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). The Supreme Court held in Pearson “that the Saucier procedure should not be regarded as an inflexible requirement,” and that courts may “exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed fmst in light of the circumstances in the particular case at hand.” Pearson, 129 S.Ct. at 813, 818.
Focusing on the second prong — whether it was objectively reasonable for Appellants to have believed that they acted lawfully under the circumstances they confronted in this case — we conclude that Appellants are entitled to qualified immunity from Appellees’ procedural due process claim. While this appeal was pending, a different panel of this Court addressed the very question at issue herein in Bayer v. Monroe County Children and Youth Services, 577 F.3d 186 (3d Cir.2009). As in the case before us, the plaintiffs in Bayer asserted a procedural due process claim based upon the fact that employees of MCCYS had taken custody of their children, but the post-deprivation hearing for the seizure did not take place within seventy-two hours.4 Id. at 191-92.
The Bayer Court held that “under the ‘clearly established’ prong of the Saucier test, defendants should be afforded qualified immunity with respect to [the plaintiffs’ procedural due process] claim.” Bayer, 577 F.3d at 192. The Court explained:
Here, it is undisputed that the children were taken into the custody of Monroe County Children and Youth Services at the end of the day on Friday and that [the MCCYS caseworker] forwarded the •relevant information to the agency’s solicitor on Monday morning, leaving the remainder of the day for the petition to be filed and hearing to be held within the prescribed 72-hour period. The agency’s solicitor did not file the petition until Tuesday morning, after that period had elapsed, but there is no indication that [the caseworker or her supervisor] ... was responsible for this delay. Furthermore, we have not found, and neither the able District Court nor plaintiffs have identified, anything in the record or law indicating that once [the caseworker] had forwarded the relevant information to the solicitor, either she or [her supervisor], in their respective capacities at Monroe County Children and Youth Services, had the authority or affirmative duty to intervene in the court’s scheduling of the subsequent dependency hearing. Nor would we impose such a duty. Accordingly, we agree with defendants that they could reasonably have believed they had discharged their responsibilities with respect to plaintiffs’ procedural due process rights by advancing the case to the *789point where a hearing could take place within the constitutionally prescribed time frame, and could reasonably have expected that their attorney and the court would hold the hearing in a timely fashion.
Id. at 193 (internal quotations and citations omitted). The Court likewise noted that “[t]o the extent plaintiffs point to ... provisions [of Pennsylvania statutory law] to substantiate a finding of a constitutional violation in this case or to demonstrate the objective unreasonableness of defendants’ conduct, such reliance is misplaced,” because “[fjederal constitutional standards rather than state statutes define the requirements of procedural due process for purposes of a § 1983 action alleging a Fourteenth Amendment violation.” Id. at 193 n. 6 (internal quotations and citations omitted).
Bayer is on all fours with the appeal before us, and it compels us to reverse the District Court’s conclusion that Appellants are not entitled to qualified immunity. See Pardini v. Allegheny Intermediate Unit, 524 F.3d 419, 426 (3d Cir.2008) (under Thúd Circuit Internal Operating Procedures, the holding of a previous panel in a precedential opinion is controlling upon the rulings of subsequent panels). Like the Bayer defendants, the MCCYS Appellants herein could reasonably have believed that they “discharged their responsibilities with respect to plaintiffs’ procedural due process rights by advancing the case to the point where a hearing could take place within the constitutionally prescribed time frame.” Bayer, 577 F.3d at 193. Indeed, whereas in Bayer the MCCYS defendants did not forward the case to the agency solicitor until nearly three days after the minors had been taken into custody, in the case before us, MCCYS filed the dependency petition for the Jarovits children the day after the children were taken into custody; that is, Appellants “advanced] the case to the point where a hearing could take place” even more swiftly than did the MCCYS employees in Bayer. Id. Moreover, as was the case in Bayer, there is nothing in the record before us to indicate that once Appellants had forwarded the relevant information to the agency solicitor and MCCYS had filed a petition in the Court of Common Pleas, any Appellant “had the authority or affirmative duty to intervene in the court’s scheduling of the subsequent dependency hearing.” Id. Finally, as in Bayer, whether Appellants “are liable under state law for violating ... provisions [governing the timeliness of post-deprivation child custody hearings] is not before us,” because “[fjederal constitutional standards rather than state statutes define the requirements of procedural due process” for a section 1983 claim. Id. at 193 n.6 (citation omitted). In sum, we conclude that whether or not Appellees have alleged a due process claim, “the right that was [allegedly] violated was [not] clearly established,” Curley, 499 F.3d at 207, meaning that Appellants are entitled to qualified immunity.
III.
For the foregoing reasons, we conclude that Appellants are entitled to qualified immunity from Appellees’ procedural due process claim. We will therefore reverse the District Court’s denial of Appellants’ motion for summary judgment as to that claim and remand for further proceedings consistent with this opinion.
. Appellees do not dispute these facts concerning the cleanliness of the residence, but they attribute the state of the home to the drug raid which had taken place six days before the MCCYS inspection.
. Appellants contend that the police removed the minors from the home, whereas Appellees maintain that Puente and Mellwaine were responsible for their removal. The parties' dispute over this fact does not impact our resolution of the issues addressed in this appeal.
. Because we find that Appellants were entitled to qualified immunity, we do not address their alternative argument that they were entitled to absolute immunity.
. The plaintiffs in Bayer were represented by the same attorney who represents Appellees, and both cases were assigned to the same District Court judge. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471861/ | OPINION
SMITH, Circuit Judge.
Marci J. Bittner appeals from the order of the United States District Court for the
Middle District of Pennsylvania granting the motion to dismiss filed by Snyder County and Michael Sholley, the District Attorney of Snyder County.1 For the reasons set forth below, we will affirm.
In April of 2007, Patrolman Chad Thomas of the Middleburg Borough Police Department hand-delivered a subpoena to Bittner, commanding her to appear and testify beginning May 29, 2007, at the criminal trial of her ex-husband. Thereafter, Bittner contacted District Attorney Sholley’s office to advise him of her need for transportation and child care. District Attorney Sholley’s office informed her that transportation and child care would be provided. Transportation was not provided, however, and Bittner failed to appear as commanded by the subpoena. As a result, a bench warrant was issued for Bittner’s arrest on May 29, 2007.
The following day, Patrolman Thomas arrested Bittner at her residence pursuant to the bench warrant, placed her in handcuffs, and transported her to the Snyder County Courthouse. After Bittner informed District Attorney Sholley that his staff had advised her that transportation would be provided, a petition was filed with the Prothonotary to withdraw the bench warrant. Within minutes, the Court of Common Pleas issued an order vacating the bench warrant. Bittner was transported to a relative’s home twenty miles away, rather than being returned to her own home, which was eighty-seven miles from the courthouse.
Thereafter, Bittner filed a complaint in the United States District Court for the *792Middle District of Pennsylvania against Snyder County and District Attorney Shol-ley in his official capacity. She alleged that Snyder County, acting through District Attorney Sholley, violated her Fourth, Fifth, and Fourteenth Amendment rights. She claimed that she had been deprived of the compensation a witness is entitled to under Pennsylvania law and that District Attorney Sholley breached his promise to provide her with transportation and child care in violation of her rights under the Fourth, Fifth and Fourteenth Amendments. Her Fourth Amendment rights were violated, according to Bittner, when she was arrested without probable cause and excessive force was used in handcuffing her. She also averred that the failure to provide her with a hearing both before the bench warrant was issued and following her arrest constituted a violation of her right to due process. In addition, she averred that District Attorney Sholley’s failure to provide her with transportation and child care, as promised, constituted a violation of a special duty that was breached when she was not returned to her own home. Snyder County and District Attorney Sholley filed a 12(b)(6) motion to dismiss.
The District Court granted the motion to dismiss. It noted that Bittner had represented that her Complaint did not assert any state law claims, that she had not sued District Attorney Sholley in his individual capacity, and that she was asserting claims against him in only his official capacity. Nonetheless, the District Court analyzed Bittner’s claims as if she had sued District Attorney Sholley in his individual capacity. Bittner’s claims based on the events that occurred pre-arrest failed as a matter of law, according to the District Court, because Bittner had not alleged a constitutional violation. The claims arising from Bittner’s arrest were dismissed because of District Attorney Sholley’s absolute prose-cutorial immunity. The District Court dismissed Bittner’s claims based on the post-arrest conduct on the ground that District Attorney Sholley had qualified immunity.
The claims against the County alleged liability on the basis that the County, acting through District Attorney Sholley, either established and followed a policy or custom that deprived Bittner of her constitutional rights, or it failed to train and supervise its employees, thereby resulting in a violation of her constitutional rights. The Court explained that because the claims against Sholley could not be maintained, the claims against the County were also deficient.
Bittner filed a timely appeal. She reiterates that Sholley was sued solely in his official capacity as a policy maker for Snyder County and that the District Court erred by failing to properly evaluate her municipal liability claim. According to Bittner, the District Court “implicitly decided ... that the District Attorney was acting as an agent for the Commonwealth, pursuing his prosecutorial functions, and was therefore immune under the Eleventh Amendment.”
We appreciate Bittner’s argument. It does appear that the District Court failed to independently analyze her municipal liability claims. See Carswell v. Borough of Homestead, 381 F.3d 235, 244 (3d Cir.2004). The Supreme Court has explained that municipal liability under § 1983 may attach even though the individual may be protected by an immunity. Owen v. City of Independence, 445 U.S. 622, 638, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980); Collins v. City of Harker Heights, 503 U.S. 115, 122, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). In this case, the claim against District Attorney Sholley in his official capacity is a claim against the municipal entity. Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). It is well settled that before a municipality may be found liable under *793§ 1983, there must be a constitutional violation. See Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The problem is that Bittner’s complaint fails to allege that she was deprived of her constitutional rights.2
We agree with the District Court that Bittner’s pre-arrest claims fail to allege a constitutional violation. Because Bittner was present in the courthouse pursuant to a bench warrant, and not in response to the subpoena, she had no right to receive witness compensation and mileage under Pennsylvania’s statutory law. Accordingly, there is no ground for a due process claim based on a deprivation of property. Nor is there any constitutional right to transportation and the child care she was allegedly promised by the District Attorney’s office.
The claims arising from Bittner’s arrest also fail. “The simple fact of nonappearance provided the government with probable cause to apply for a bench warrant[.]” In re Grand Jury Proceedings, 658 F.2d 211, 214 (3d Cir.1981); see also Luches v. County of Hennepin, Minnesota, 415 F.3d 936, 939 (8th Cir.2005).3
Bittner also claims that she was deprived of her due process rights because she was not afforded a hearing prior to the issuance of the bench warrant or following her arrest. Neither this court nor the Supreme Court has held that there is a right to be heard before the issuance of a warrant. With respect to her claim that she was deprived of her right to a hearing post-arrest, we fail to see a violation of that right inasmuch as the arrest warrant was vacated before a hearing could be conducted.
Finally, we agree with the District Court that Bittner’s state created danger claim, which presumes there was a special duty to provide her with transportation to her home once she was arrested, fails as a matter of law. Her averments, even accepted as true, do not plausibly suggest the elements of a viable state created danger claim. See Bright v. Westmoreland County, 443 F.3d 276, 281 (3d Cir.2006). Accordingly, that claim does not survive the County’s 12(b)(6) motion. Iqbal, 129 S.Ct. at 1949.
In sum, we will affirm the judgment of the District Court. A necessary predicate for a § 1983 municipal liability claim is a constitutional violation. The complaint, however, did not provide sufficient factual matter to establish a reasonable inference that Bittner’s constitutional rights had been violated. Accordingly, her complaint was properly dismissed. Id.
. The District Court exercised jurisdiction under 28 U.S.C. §§ 1331, and 1343. Appellate jurisdiction exists under 28 U.S.C. § 1291. We exercise plenary review over an order granting a motion to dismiss. In order to "survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
. We decline to address Bittner’s contention that the District Court implicitly decided that her claims were barred by the Eleventh Amendment inasmuch as the District Court does not mention it. We may affirm, however, on any basis supported by the record. Nicini v. Morra, 212 F.3d 798, 805 (3d Cir.2000) (en banc); see also Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 82 L.Ed. 224 (1937) ("In the review of judicial proceedings the rule is settled that, if the decision below is correct, it must be affirmed, although the lower court relied upon a wrong ground or gave a wrong reason.”).
. In addition to alleging a violation of her Fourth Amendment right not to be arrested without probable cause, Bittner also alleged that she was subjected to excessive force in being handcuffed. On appeal, Bittner submits, not that excessive force was used, but that her rights were violated because she was handcuffed even though she was not a criminal defendant. Viewed in this light, her claim is simply another way of alleging that she was arrested without probable cause. That claim, however, fails as a matter of law since Patrolman Thomas properly arrested Bittner under the bench warrant. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471863/ | OPINION
SLOVITER, Circuit Judge.
Appellant Carlos Peralta appeals the District Court’s decision not to grant him a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). We will affirm.
*795I.
In July 2007, Peralta pled guilty to possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1), and illegal re-entry into the United States by an aggravated felon, in violation of 8 U.S.C. § 1326(b)(2). At Peralta’s sentencing hearing in December 2007, the District Court adopted, without objection, the Pre-sentence Report (“PSR”) prepared by the Probation Office.
According to the PSR, Peralta was responsible for 114.22 grams of cocaine base and 99.36 grams of cocaine powder. Under the Sentencing Guidelines applicable at that time,1 Peralta faced a base offense level of thirty-two based on this amount of drugs. Peralta’s immigration offense had no impact on his offense level. The PSR recommended a three-level reduction for acceptance of responsibility, and, combined with his criminal history category of I, Peralta therefore faced a Guidelines sentence of 87 to 108 months imprisonment.
After hearing argument from both parties, the District Court imposed a sentence of sixty-four months imprisonment. The Court recognized that, under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), it could grant a variance to account for the crack-powder sentencing disparity, and decided that such a variance was appropriate here. The Court also noted that the Sentencing Commission had issued Amendment 706 to the Guidelines to reduce the offense level for certain crack cocaine offenses by two levels. The Court announced that it would apply such a reduction to Peralta’s sentence even though it was outside the scope of Amendment 706. See U.S.S.G. App. C, Amend. 706 (Nov. 1, 2007). The Court also determined that the sentence balanced Peralta’s status as a low-level dealer and his poor health against his record of multiple illegal entries into the United States and prior drug offenses.
Peralta did not appeal his conviction or sentence. However, Peralta subsequently moved for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2), which permits a district court to reduce a sentence that was “based on a sentencing range that has subsequently been lowered by the Sentencing Commission ..., if such reduction is consistent with applicable policy statements issued by the Sentencing Commission.” In support of his motion, Peralta relied upon Amendment 715, which was made retroactive by Amendment 716. See U.S.S.G. App. C., Amends. 715, 716 (May 1, 2008). Pursuant to Amendment 715, the base offense level for Peralta’s drug offense would be reduced to thirty, and he would face an amended Guidelines range of seventy to eighty-seven months imprisonment. Peralta seeks a new sentence of fifty-two months imprisonment, i.e., a variance from the amended Guidelines range equivalent to the variance granted by the District Court below his original Guidelines range. Appellant’s Br. at 9.
The District Court denied the motion for a sentence reduction. It held that Peralta “was given the benefit of the two level reduction authorized by Amendment 715; the sentence was below the advisory guideline range even after the two level reduction ...; and the Court finds [Peralta] is not eligible for any additional reduction in his sentence as it already took into account the crack cocaine amendments.” App. at 3. Peralta timely appealed.2
*796II.
Although his original sentence “already took into account the crack cocaine amendments,” Peralta still argues that the District Court erred in denying his motion for a sentence reduction. App. at 3. We disagree.
As noted above, the District Court anticipated Amendment 715 and applied a two-level reduction to the offense level for Peralta’s drug offense. Thus, Peralta, in essence, already received the benefit of Amendment 715 in his original sentence. That is all Peralta is entitled to under § 8582(c)(2). See U.S.S.G. § lB1.10(b)(l) (“In determining whether, and to what extent, a reduction in the defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement is warranted ... the court shall substitute only the [applicable] amendments ... for the corresponding guideline provisions that were applied when the defendant was sentenced.... ”).
Further, the District Court granted Peralta a downward variance pursuant to Booker and Kimbrough and sentenced him to sixty-four months imprisonment, i.e., below both the original and amended Guidelines ranges. Under the Sentencing Guidelines, “if the original term of imprisonment constituted a non-guideline sentence determined pursuant to 18 U.S.C. § 3553(a) and [Booker ], a further reduction generally would not be appropriate.” U.S.S.G. § lB1.10(b)(2)(B). Contrary to Peralta’s arguments to this court, “[nothing in Booker purported to obviate the congressional directive in § 3582(c)(2) that a sentence reduction pursuant to that section be consistent with Sentencing Commission policy statements.” United States v. Doe, 564 F.3d 305, 314 (3d Cir.2009).
Accordingly, the District Court did not abuse its discretion in rejecting Peralta’s request for a sentence reduction. Peralta has already received the benefit of Amendment 715, and, in any case, the Sentencing Guidelines make clear that a sentence reduction is generally not appropriate where a defendant, like Peralta, received a downward variance in his or her original sentence.
III.
For the above-stated reasons, we will affirm the District Court’s order denying a sentence reduction.
. The PSR was calculated under the 2007 version of the Guidelines.
. The District Court had jurisdiction pursuant to 18 U.S.C. §§ 3231 and 3582. We have jurisdiction under 28 U.S.C. § 1291 and review a district court’s "decision whether to grant or deny a defendant's motion to reduce sentence under § 3852(c)(2) for abuse of discretion.” United States v. Mateo, 560 F.3d 152, 154 (3d Cir.2009). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471865/ | OPINION
PER CURIAM.
Deborah Morris filed this pro se petition for a writ of mandamus pursuant to 28 U.S.C. § 1651 seeking an order compelling the District Court to modify her sentence of imprisonment to home confinement. For the reasons that follow, we will deny the petition.
Morris is currently serving a 60-month sentence of imprisonment at the Alderson Federal Prison Camp in West Virginia for multiple fraud convictions arising from a scheme in which she obtained reimbursements from the Medicare program for clinical services never performed. The United States District Court for the Eastern District of Pennsylvania imposed the sentence in 2007. Morris’ counseled, direct appeal of her conviction and sentence is currently pending before this Court (C.A. No. 07-4258).
In August 2008, Morris filed a motion asking the District Court to suspend her sentence of imprisonment and modify it to home confinement. She claimed she was receiving inadequate medical care for numbness, dizziness, and leg weakness and that the Federal Bureau of Prisons would “seek retaliatory measures” against her by moving her to a medical facility distant from her family and counsel. The District Court denied the motion. About six months later, in March 2009, Morris filed a second motion seeking home confinement on the basis that it would enable her both to receive the medical care she wants and to work so that she could begin paying the restitution portion of her sentence. The District Court denied this motion on March 23, 2009, 2009 WL 789681, on the basis that it lacked jurisdiction to modify her sentence, whose implementation is now under the authority and discretion of the Bureau of Prisons. Morris filed her petition for a writ of mandamus with this Court on May 13, 2009.
Mandamus is a drastic remedy available only in the most extraordinary of circumstances. See In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir.2005). To demonstrate that mandamus is appropriate, a petitioner must establish that she has a “clear and indisputable” right to the issuance of the writ and that she has “no other adequate means” to obtain the relief desired. Madden v. Myers, 102 F.3d 74, 79 (3d Cir.1996).
Morris seeks to compel the District Court to modify her sentence, which was imposed almost two years ago. Once a term of imprisonment has been imposed, a district court has the authority to modify it only in limited circumstances. Under 18 U.S.C. § 3582(c), those circumstances are: (1) when the Director of the Bureau of *798Prisons moves for a reduction in the term of imprisonment on the basis of what is sometimes called the “compassionate relief’ provisions; (2) when Federal Rule of Criminal Procedure 35 permits such modification; or (3) when the sentencing range under which a defendant was sentenced has subsequently been lowered by the Sentencing Commission. None of these circumstances are present in this case. The Director of the Bureau of Prisons has not moved for a reduction in Morris’ term of confinement and Morris does not seek a reduction based on a change in the Sentencing Guidelines. Finally, Rule 35 provides no authority for the District Court to grant Morris’ request to modify her sentence because more than seven days have passed since sentencing. See United States v. Higgs, 504 F.3d 456, 463 (3d Cir.2007) (holding that the seven-day time requirement in Rule 35(a) is jurisdictional).
Once a sentence is imposed, the Bureau of Prisons is responsible for implementing it, including the designation of the place of imprisonment. See 18 U.S.C. §§ 3586, 3621(b). The Bureau has in place an administrative remedy program, as well as procedures for requesting compassionate release and criteria for home confinement. See 28 C.F.R. §§ 542.10 et seq., 571.60 et seq.; U.S. Dep’t. of Justice, Fed. Bureau of Prisons, Program Statement 7320.01: Home Confinement (1995). Morris apparently believes that this system is inadequate, although it does not appear from her filings before this Court and the District Court that she has requested home confinement from the Bureau of Prisons.1 Furthermore, her mere belief does not alter the fact that the District Court lacks authority to modify her sentence or that other avenues for redress exist. Because Morris has not shown a clear and indisputable right to issuance of the relief she seeks, we will deny her petition for a writ of mandamus.
. The administrative remedy request forms Morris attached to her first motion to modify her sentence show that she asked only “to be seen by a neurologist locally or by my private neurologist.” | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471869/ | OPINION
PER CURIAM.
In February 2009, Reynaldo Rosario filed this pro se mandamus petition seeking an order directing the District Court to rule on a civil rights complaint he filed on or about August 22, 2000 in the United States District Court for the District of New Jersey. For the reasons that follow, we will deny the petition.
I.
In his mandamus petition, Rosario alleges that when he first filed his civil rights complaint, he received a Notice of Allocation and Assignment from Magistrate *805Judge Susan Davis Wigenton advising him that the case was assigned to District Judge Alfred M. Wolin. Rosario alleges that Judge Wolin erroneously consolidated his civil rights complaint with a § 2255 motion that he separately filed on August 30, 2000 and gave both matters the same docket number (2:00-cv-04239). Rosario states that, as a result, no action has been taken on his civil rights complaint in nine years, despite his attempts through “due diligence” to notify the court of this docketing error so that his matter could proceed. As proof, Rosario attaches to his petition for writ of mandamus various exhibits, including a copy of the allegedly filed civil rights complaint, which shows a date stamp of August 22, 2000 and docketing number of “00-cv-04289” typed into the caption line.
This Court requested the Clerk of the Court for the District of New Jersey to respond to Rosario’s allegations and attached documentation. After a careful review of the docket, the Clerk’s Office asserted that this document was never submitted for filing in case 00-cv-04239. This conclusion was based on the following: (1) there is no evidence of the civil rights complaint in the docket for case number OO-cv-04239, and no mention of the complaint until 2003, which was after Rosario’s § 2255 motion was denied by the District Court, the denial was affirmed by the Court of Appeals, and cer-tiorari was denied by the Supreme Court; (2) there is no order of consolidation and no notation on the docket of 00-cv-04239 that there is a related case; (3) the Clerk’s Office does not, and never did, type docket numbers onto complaints; and (4) the “00AUG 22, MAIL ROOM, NEWARK, NJ 07102” date stamp that appears on Rosario’s civil complaint is different from the date stamp used by the Newark vicinage Clerk’s Office. The Clerk’s Office also noted that in an Order dated June 5, 2009, the District Court granted Rosario leave to file a civil complaint based on the allegations he describes in his mandamus petition.
II.
Mandamus is a drastic remedy available only in the most extraordinary of circumstances. See In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir.2005). To demonstrate that mandamus is appropriate, a petitioner must establish that he has “no other adequate means” to obtain the relief and that he has a “clear and indisputable” right to issuance of the writ. Madden v. Myers, 102 F.3d 74, 79 (3d Cir.1996). Based on the response by the Clerk’s Office, it is not “clear and indisputable” that Rosario properly filed his civil rights complaint in the District Court in August 2000, let alone that he has a right to the relief he seeks.
Accordingly, we will deny the petition for writ of mandamus. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471871/ | OPINION
PER CURIAM.
Angel M. Pinet appeals from the order of the United States District Court for the District of New Jersey denying his habeas petition filed pursuant to 28 U.S.C. § 2241. We will affirm.
Pinet is currently serving a 360-month federal imprisonment term imposed in December 1998. In addition to the imprisonment term, the sentencing court assessed a $2,000.00 fine to be paid immediately. In 2005, Pinet entered into what he calls a “duress agreement” with the Bureau of Prisons (“BOP”) under the Inmate Financial Responsibility Program (“IFRP”), whereby he agreed to make quarterly payments to satisfy his fine. On May 7, 2007, Pinet refused to make any further payments while incarcerated. Consequently, the BOP placed him on “IFRP Refuse” status. Pinet proceeded to pursue administrative remedies and appeals, asserting that the sentencing court should set the payment schedule for the imposed fine, and that the BOP lacked authority to do so. Ultimately, Pinet was unsuccessful in obtaining administrative relief.
In June 2008, Pinet filed a habeas petition under 28 U.S.C. § 2241, maintaining that the BOP unlawfully established a schedule for paying the fine when that duty belonged to the sentencing court. He alleged that despite the BOP’s characterization of the IFRP as a voluntary program, his refusal to participate results in the loss of certain benefits relating to, as examples, his prison employment wages, commissary spending limits, and housing status. Upon consideration of the parties’ submissions, the District Court denied the section 2241 petition, concluding that the BOP was not precluded from setting a payment schedule via the IFRP for Pinet to pay his criminal fine. Pinet appeals. We have appellate jurisdiction under 28 U.S.C. § 1291.
At the outset, we note that because Pi-net challenges the execution of his sentence by claiming that the BOP acted unlawfully in establishing a payment schedule regarding the imposed fine, the claim falls squarely within the purview of a section 2241 petition. See Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir.2001). Pinet first argues that the District Court misconstrued his habeas petition as a challenge to the constitutionality of the IFRP. We disagree. The District Court *807did reaffirm the constitutionality of the IFRP, citing James v. Quinlan, 866 F.2d 627 (3d Cir.1989). However, in denying habeas relief, it duly considered and rejected Pinet’s claim that the BOP acted unlawfully in setting a payment schedule to satisfy the fine.
Pinet’s main argument is that 18 U.S.C. § 3572(d) precludes the sentencing court from delegating the task of setting a payment schedule for fines. In support, Pi-net relies on the language of the statute allowing the sentencing court to provide for installment payments, and that the sentencing court (not the BOP) is to establish the schedule and period for payment. See 18 U.S.C. § 3572(d)(1), (2). However, section 3572(d)(1) also provides that an imposed fíne shall be paid “immediately” unless the sentencing court directs installment payments in the interest of justice. There is no dispute here that the sentencing court ordered Pinet to pay the fine immediately. No payment schedule was at issue, and no delegation of judicial function occurred.1 Contrary to Pinet’s assertions, nothing in section 3572(d)’s language precludes the BOP under its IFRP regulations from setting a payment schedule to satisfy a fine that was due to be paid immediately.
Pinet also cites our decision in United States v. Coates, 178 F.3d 681, 684 (3d Cir.1999), emphasizing our statement that section 3572(d)(1) applies to all monetary penalties, including fines and orders of restitution. However, we also highlighted in Coates the distinction between section 3572(d)(1) and the affirmative requirement for the sentencing court to set a payment schedule under the Mandatory Victims Restitution Act. Since Coates, we decided United States v. Corley, 500 F.3d 210, 226-27 (3d Cir.2007), where we held that a sentencing court impermissibly delegates its authority to the BOP when, knowing that the defendant was financially unable to make immediate restitution payment, it orders payments due immediately but to be made via the IFRP. The holdings of Coates and Corley are based on 18 U.S.C. § 3664(f)(2), which directs the sentencing court to establish a restitution payment schedule taking the defendant’s finances into consideration. In Pinet’s case, he is not challenging a restitution order. There is no analogous statutory provision governing the imposition of fines that requires the sentencing court to set payment schedules -with consideration of the defendant’s finances.
We will affirm the District Court’s order denying Pinet’s section 2241 petition.
. Pinet misplaces his reliance on cases such as United States v. Foote, 413 F.3d 1240 (10th Cir.2005); United States v. Workman, 110 F.3d 915 (2d Cir.1997); and United States v. Miller, 77 F.3d 71 (4th Cir.1996). In each of these cases, the sentencing courts ordered the defendants to pay fines in installments and expressly delegated the task of establishing payment schedules, unlike the situation in Pinet’s case. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471873/ | OPINION
PER CURIAM.
Anthony Long appeals pro se from the District Court’s order denying his motion under 18 U.S.C. § 3582(c)(2) to modify his sentence. We will affirm.
I.
In 1991, a federal grand jury indicted Long and twenty-five others on charges relating to their involvement with a drug gang called the “Junior Black Mafia.” Long himself was charged with one count of conspiracy to distribute and possess with the intent to distribute five kilograms or more of cocaine and an unspecified amount of heroin in violation of 21 U.S.C. § 841(a)(1). A jury found him and six others guilty of that charge. The District Court sentenced Long to 360 months of imprisonment. That sentence was based on a Criminal History Category of III and a Sentencing Guidelines base offense level of 42, which in turn was based on Long’s responsibility for 520 kilograms of cocaine and a two-level enhancement for possession of a firearm during the offense. We affirmed both his conviction and his sentence. See United States v. Price, 13 F.3d 711, 734 (3d Cir.1994). Long has since challenged his sentence by filing a motion under 28 U.S.C. § 2255 and two motions under 18 U.S.C. § 3582(c)(2), to no avail.
In 2008, Long filed pro se a third motion under § 3582(c)(2), which is the motion at *809issue here. Long relies on three amendments to the Sentencing Guidelines: (1) Amendment 505, which eliminated former base levels 38, 40 and 42, and replaced them with a revised maximum base level of 38; (2) Amendment 706, which decreased the base offense level for crack cocaine offenses set forth in U.S.S.G. § 2Dl.l(e)(l); and (3) Amendment 709, which amended the treatment of certain prior sentences and offenses for purposes of determining a defendant’s criminal history score under U.S.S.G. § 4A1.2(c). He also argued that he was entitled to relief under the “safety valve” provision of 18 U.S.C. § 3553(f), which authorizes district courts to impose a sentence below the statutory mandatory minimum when a defendant meets five statutory requirements. The District Court denied Long’s motion by memorandum and order entered March 18, 2009, 2009 WL 703942, and Long, appeals.1
II.
The District Court’s memorandum thoroughly explains why Long is not eligible for sentencing relief, and we will affirm substantially for the reasons stated therein. On appeal, Long concedes that Amendment 505 affords him no relief unless he is entitled to relief also under Amendments 706 or 709, and raises no argument regarding the “safety valve” provision of § 3553(f). Thus, we address only his arguments regarding Amendments 706 and 709.2
First, Long argues that he is entitled to relief under Amendment 706, which
“decreased by two levels the base offense level for crack cocaine offenses.” United States v. Wise, 515 F.3d 207, 219 (3d Cir.2008). As the District Court explained, this argument fails for the simple reason that crack cocaine played no role in determining Long’s sentence. Long was convicted only on one count of conspiracy regarding cocaine and heroin, not crack cocaine, and the only substance that played a role in determining his sentence was 530 kilograms of cocaine. See Price, 13 F.3d at 733-34. Long cites references to crack cocaine in portions of the indictment and in court opinions regarding some of his co-defendants, and argues that Amendment 706 entitles him to relief because crack was “in his case.” The fact remains, however, that crack eocaine played no role in determining his sentence, and “ ‘to say that [his] sentence was “based on” the crack cocaine guideline strains credulity.’ ” See Mateo, 560 F.3d at 154-55 (rejecting resort to Amendment 706 where sentencing range was not based on crack cocaine) (citation omitted). Long also relies on Edwards v. United States, 523 U.S. 511, 118 S.Ct. 1475, 140 L.Ed.2d 703 (1998), for the proposition that district courts may sentence on the basis of “relevant conduct,” which may include conduct other than the .offense of conviction. In Edwards, however, the District Court expressly sentenced the defendant on the basis of crack cocaine, which did not happen here, and Edwards otherwise has no relevance to any issue on appeal. Thus, *810Amendment 706 has no bearing on Long’s sentence.
Second, Long argues that he is entitled to relief under Amendment 709, which amended the treatment of certain prior sentences and offenses for purposes of determining a defendant’s criminal history score. The District Court held that Long may not seek relief under Amendment 709 by means of a § 3582(c)(2) motion because the Sentencing Commission has not made Amendment 709 retroactive. We agree.3 Section 3582(c)(2) authorizes reduction of a sentence “based on a sentencing range that has subsequently been lowered by the Sentencing Commission,” but only “if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” § 3582(c)(2). The policy statement applicable here is contained in U.S.S.G. § lBl.ll(a), which authorizes a sentence reduction on the basis of a subsequent Guideline amendment only if the Commission makes the amendment retroactive by including it in U.S.S.G. § lBl.ll(c). See Wise, 515 F.3d at 221. The Commission has not made Amendment 709 retroactive, see U.S.S.G. § 1B1.11(c), so that amendment provides no basis for relief under § 3582(c)(2), see Wise, 515 F.3d at 221. Long argues that U.S.S.G. § lBl.ll(a) has been rendered merely advisory by United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), but we have squarely rejected that argument and have held that that provision remains binding on the district courts. See United States v. Doe, 564 F.3d 305, 312-14 (3d Cir.2009); Mateo, 560 F.3d at 155-56; Wise, 515 F.3d at 221 n. 11. Long’s reliance on United States v. Horn, 590 F.Supp.2d 976 (M.D.Tenn.2008), which reached the opposite conclusion, is misplaced.
Accordingly, we will affirm.
. We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s interpretation of the Guidelines de novo and its ultimate disposition of a § 3582(c)(2) motion for abuse of discretion. See United States v. Mateo, 560 F.3d 152, 154 (3d Cir.2009).
. Nevertheless, we note our agreement with the District Court’s rationale for rejecting Long's remaining arguments. Long also continues to challenge the District Court's original imposition of a two-level enhancement for possession of a firearm, which was part of the sentence we affirmed in 1994. See Price, 13 F.3d at 734. The District Court properly explained that § 3582(c)(2) does not allow him to litigate that issue. See United States v. Styer, 573 F.3d 151, 153-54 (3d Cir.2009).
. The District Court further concluded that, even if Long were eligible to seek relief under Amendment 709, application of the amend-merit would have no effect on his sentence. In light of our disposition, we need not address that issue. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8472110/ | PER CURIAM:
Yulin Ma, proceeding pro se, appeals the district court’s order denying his motion for a jury trial to alter or amend, his motion in limine, and his renewed motion for reconsideration of its order dismissing his personal injury tort claims against Jessie L.-S. Au and Guillaume M. Wientjes under 28 U.S.C. § 157(b)(5). The district court dismissed Ma’s claims under Fed. R.Civ.P. 41(b) after he failed to comply with a magistrate judge’s order that required payment of expenses as a result of his failure to meet his discovery obligations. The court found that, based on Ma’s own testimony, he had sufficient funds to pay the award and that he did not make a good-faith effort to work out a monthly payment plan. Ma did not request any transcripts after filing his notice of appeal.
I.
Ma contends that the district court abused its discretion by dismissing his claims under Rule 41(b) because he did not have notice that his non-payment could result in dismissal and he complied with the order by making a good-faith effort to work out a monthly payment plan. He also contends that the court failed to consider any lesser sanctions before dismissing his claims.
We review a dismissal under Fed. R.Civ.P. 41(b) only for an abuse of discretion. Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir.1985). The district court’s factual findings are reviewed only for clear error. Zocaras v. Castro, 465 F.3d 479, 483 (11th Cir.2006). “A district court is authorized, on defendant’s motion, to dismiss an action for failure to prosecute or to obey a court order or federal rule.” Goforth, 766 F.2d at 1535. “Dismissal of a case with prejudice is considered a sanction of last resort, applicable only in ex*438treme circumstances.” Id. In reviewing a dismissal under Rule 41(b), we consider “whether there is a clear record of delay or willful contempt and a finding that lesser sanctions would not suffice.” Id. (quotation omitted). The district court’s finding regarding lesser sanctions may be implicit or explicit. Gratton v. Great Am. Commc’ns, 178 F.3d 1373, 1374 (11th Cir.1999). Mere negligence or confusion is not sufficient to justify a finding of delay or willful misconduct. McKelvey v. AT & T Techs., Inc., 789 F.2d 1518, 1520 (11th Cir.1986). Dismissal pursuant to Rule 41(b) “upon disregard of an order, especially where the litigant has been forewarned, generally is not an abuse of discretion.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.1989).
Under the Federal Rules of Appellate Procedure, an appellant has the duty to order and file with the district court any necessary transcripts “[wjithin [ten] days after filing the notice of appeal or entry of an order disposing of the last timely remaining motion of a type specified in [Fed. RApp.P.] 4(a)(4)(A), whichever is later.” Fed.RApp.P. 10(b)(1). “If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant must include in the record a transcript of all evidence relevant to that finding or conclusion.” Fed.R.App.P. 10(b)(2). “[W]here a failure to discharge th[is] burden prevents us from reviewing the district court’s decision we ordinarily will affirm the judgment.” Selman v. Cobb County Sch. Dist., 449 F.3d 1320, 1333 (11th Cir.2006).
Because Ma did not request a transcript of the hearing where he provided testimony regarding his financial condition, we reject Ma’s challenges to the district court’s findings based on the testimony presented at that hearing. In view of those findings, the district court did not abuse its discretion by dismissing Ma’s claims under Rule 41(b) because Ma willfully failed to comply with the magistrate’s order, and lesser sanctions would not suffice.
II.
Ma also contends that the district court erred by denying his renewed motion for reconsideration of the magistrate’s order requiring his compliance with his discovery obligations, his motion in limine to prohibit Au and Wientjes’s counsel from further participating in the action, and his motion for a jury trial to alter or amend the district court’s order of dismissal. He argues that their counsel submitted false affidavits to the district court regarding his financial condition and that the district court failed to consider the entire record.
We review the denial of a motion under Rule 59 for abuse of discretion. Arthur v. King, 500 F.3d 1335, 1343 (11th Cir.), cert. denied, 552 U.S. 1040, 128 S.Ct. 660, 169 L.Ed.2d 511 (2007). The only grounds for granting a motion under Rule 59 are newly discovered evidence or manifest errors of law or fact. Id. “[A] Rule 59(e) motion [cannot be used] to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment.” Id. Any post-judgment motion to alter or amend the judgment served within ten days after the entry of the judgment, other than a motion to correct purely clerical errors, is within the scope of Rule 59(e) regardless of its label. United States v. E. Air Lines, Inc., 792 F.2d 1560, 1562 (11th Cir.1986); Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665, 667 (5th Cir.1986).
Post-judgment motions filed more than ten days after the judgment may be construed as filed under Fed.R.Civ.P. 60(b). Mahone v. Ray, 326 F.3d 1176, 1178 n. 1 *439(11th Cir.2003). “Rule 60(b) allows a party to seek relief from a final judgment, and request reopening of his case, under a limited set of circumstances including fraud, mistake, and newly discovered evidence.” Gonzalez v. Crosby, 545 U.S. 524, 528, 125 S.Ct. 2641, 2645-46, 162 L.Ed.2d 480 (2005). Thus, “Rule 60(b) may not be used to challenge mistakes of law which could have been raised on direct appeal.” Am. Bankers Ins. Co. of Fla. v. Nw. Nat. Ins. Co., 198 F.3d 1332, 1338 (11th Cir.1999). To prevail under Rule 60(b)(3) based on fraud, “the moving party must prove by clear and convincing evidence that the adverse party obtained the verdict through fraud, misrepresentations, or other misconduct” and “that the conduct prevented [him] from fully presenting his case.” Waddell v. Hendry County Sheriff's Office, 329 F.3d 1300, 1309 (11th Cir.2003).
The district court did not abuse its discretion by denying Ma’s post-judgment motions because they were filed more than ten days after the judgment, attempted to relitigate issues previously decided by the district court, and did not show that the judgment was obtained through fraud.
III.
After review of the record and consideration of the parties’ briefs, we affirm.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471876/ | OPINION
PER CURIAM.
Juan Wiggins appeals pro se from an order of the District Court dismissing his complaint. We will affirm.
I.
In 2000, Wiggins filed suit under 42 U.S.C. § 1983 against William F. Logan, an Atlantic City police officer, and his canine partner, K-9 Agent “Deuce.” (D.N.J.Civ. No. 00-cv-05281.) Wiggins alleged that Logan ordered Deuce to bite him during an arrest even though he had surrendered. The District Court granted Wiggins’s motion for leave to proceed in forma pauperis and directed the United States Marshal to serve the summons and complaint. See 28 U.S.C. § 1915(d). The copy of Logan’s summons delivered to the United States Marshal bore the last name “Hogan” instead of “Logan,” a mistake that Wiggins attributes to “a district court clerk.” When the Marshal attempted to serve the complaint at the Atlantic City Police Department, he apparently was told that there was no one there by the name of “Hogan,” and he filed returns of service unexecuted on January 2, 2001.
Wiggins took no further action and, eight months later, the District Court dismissed the action without prejudice under Rules 4(m) and 41(b) for failure to effect service. Wiggins appealed. On June 4, 2002, we dismissed his appeal for failure to prosecute, and we later denied his subsequent motion to reopen (thus, we did not, as the District Court later wrote and as Logan states in his brief, “affirm”). (C.A. No. 02-1985.)1
*813Wiggins was incarcerated when he filed his complaint in 2000, but he was released in November 2002. In December 2006, he filed the complaint at issue here. Wiggins again named Logan and Deuce as defendants, and repeated his allegations that Logan had ordered Deuce to bite him. The only claim he asserted, however, was one that Logan had fraudulently refused to accept service of the 2000 complaint and thereby denied him access to the courts in violation of the Fourteenth Amendment. Wiggins asserts in his complaint that Logan refused service by “den[ying] ever working at the dog training facility” and by having “individuals give[] false information to the courts” about “defendantsP] whereabouts.” He also alleges that, in April 2005, he happened upon a newspaper article with a picture of an officer he recognized. When he asked someone to read the article to him, he “discovered” that the officer was Logan and that Logan worked with Deuce. (Wiggins does not allege the significance of this discovery, but it apparently confirmed for him that Logan and Deuce were indeed the officer and dog he had intended to sue and the Marshal had attempted to serve.)
This time, the Marshal was able to serve the complaint, and Logan filed an answer. Logan later filed a motion to dismiss, purportedly under Rule 12(b)(6), which is how the District Court treated it.2 The District Court granted the motion by order entered June 25, 2008. The District Court construed Wiggins’s complaint to reassert a claim based on the 2000 dog bite incident and to assert an additional claim based on Logan’s alleged refusal to accept service. The District Court dismissed the dog bite claim under the statute of limitations. It also concluded that Logan’s alleged refusal to accept service did not state a federal claim. Instead, it concluded that the claim arose under state law, and it declined to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c)(3). Wiggins filed a notice of appeal. The District Court later entered an order on July 15, 2008, clarifying that it was also dismissing Wiggins’s claims against Deuce and any “John Doe” defendants. Wiggins then filed a “motion for certificate of probable cause” expressing his intention to appeal that order as well.3
II.
The only argument that Wiggins raises on appeal is that the District Court erred in applying the statute of limitations because it assumed that he was asserting his original claim based on the 2000 dog bite incident. Wiggins insists instead that the only claim he intended to assert was a Fourteenth Amendment claim based on Logan’s allegedly-fraudulent refusal to accept service of his original complaint. Thus, even if the District Court properly construed Wiggins’s complaint to reassert his underlying dog bite claim, Wiggins has clearly abandoned it on appeal. Accordingly, we do not reach the issue of whether the District Court properly dismissed it under the statute of limitations.
*814That leaves Wiggins’s claim regarding Logan’s refusal to accept service. The District Court was properly troubled by these circumstances. As the District Court noted, the failure of the Atlantic City Police Department to accept service of the 2000 complaint may be “questionable” because the summons addressed to “Hogan” and identifying him as an officer in the K-9 unit, together with a separate summons addressed to K-9 office “Decue” [sic], likely should have alerted the Department that the summons for “Hogan” was intended for “Logan.” Moreover, Wiggins attributes the misspelling to the District Court, which was required to effect service, and his potentially-valid claim of excessive force was dismissed solely because the Marshal failed to do so. Thus, we share the District Court’s concerns.
The District Court concluded, however, that Wiggins’s allegations do not state a federal claim, and we agree. Wiggins claims that Logan deprived him of his right to access the courts, which he identifies as arising under the Fourteenth Amendment but which has been found to arise under other constitutional provisions as well. See Gibson v. Superintendent of N.J. Dep’t of Law and Pub. Safety, 411 F.3d 427, 441-42 (3d Cir.2005). Wiggins, however, has not been denied his right to access the courts. Wiggins was permitted to file his 2000 complaint informa pauper-is, and thus was already in court when the alleged denial of access occurred. Thus, any misconduct on Logan’s part might have warranted relief in the existing 2000 action, but it would not allow Wiggins to bring a separate action and assert an independent claim.
As we have explained, “[a] plaintiff typically cannot recover for any cover-ups or discovery abuses after an action has been filed inasmuch as the trial court can deal ■with such situations in the ongoing action .... Thus, only prefiling conduct that either prevents a plaintiff from filing suit or renders the plaintiffs access to the court ineffective or meaningless constitutes a constitutional violation.” Estate of Smith v. Marasco, 318 F.3d 497, 511 (3d Cir.2003) (emphasis added). See also Gibson, 411 F.3d at 441-42 (summarizing actionable right of access claims); Swekel v. City of River Rouge, 119 F.3d 1259, 1263 (6th Cir.1997) (“When the abuse transpires post-filing, the aggrieved party is already in court and that court usually can address the abuse, and thus, an access to courts claim typically will not be viable.”).
Wiggins has alleged no such conduct here. Instead, he alleges merely that Logan wrongfully interfered with service of process in some manner. As with other post-filing conduct, that alleged conduct could have been redressed if appropriate by the District Court in the 2000 action, even if Wiggins discovered it only after that action had been dismissed. See, e.g., Fed.R.Civ.P. 4(m) (allowing an extension of time to serve the complaint for “good cause”); Fed.R.Civ.P. 60(b) (allowing relief from a judgment on the grounds, inter alia, of mistake, newly-discovered evidence, or fraud). Wiggins also may have been able to obtain relief in his appeal from the dismissal of his 2000 action. See Welch, 925 F.2d at 669-70. See also Lindsey v. United States R.R. Retirement Bd., 101 F.3d 444, 446-47 & n. 4 (5th Cir.1996) (vacating dismissal of in forma pauperis complaint where failure to serve it was due to District Court’s oversight); Antonelli v. Sheahan, 81 F.3d 1422, 1426 (7th Cir.1996) (remanding for consideration of adequacy of Marshal’s attempt to serve in forma pauperis complaint). Wiggins, however, failed to prosecute that appeal, which led to its dismissal, so he forfeited any right to challenge the dismissal of his 2000 action.
Thus, we agree that Wiggins did not state a federal claim. The District Court *815went on to conclude that “the underlying facts of this claim sound in state law” and declined to exercise supplemental jurisdiction. The District Court did not discuss what claim these allegations might give rise to under state law, and we express no opinion on that issue. To the extent that they can be construed to assert a claim under state law, however, the District Court did not abuse its discretion in declining to exercise supplemental jurisdiction, which it did for the statutorily-authorized reason that it had dismissed all claims within its original jurisdiction. See 28 U.S.C. § 1367(c)(3); Figueroa, 188 F.3d at 181.
Accordingly, we will affirm.
. The dismissal without prejudice for failure to serve was a final order. See Welch v. Folsom, 925 F.2d 666, 668 (3d Cir.1991). On September 27, 2002, after we dismissed his appeal, Wiggins purported to file an amended complaint in the dismissed New Jersey action. The docket reflects no further activity in that case. Wiggins raises no issue regarding that amended complaint on appeal, but we note that the filing of the amended complaint did not cure the basis on which the District Court dismissed Wiggins's initial complaint (i.e., failure to serve).
. Logan could not file a motion under Rule 12(b)(6) because he already had answered Wiggins’s complaint. See Fed.R.Civ.P. 12(b). Thus, the District Court should have treated the motion as a motion for judgment on the pleadings under Rule 12(c). That error was harmless, however, because our disposition turns solely on an issue of law.
. We have jurisdiction under 28 U.S.C. § 1291. Our review of legal issues is plenary whether the District Court dismisses a complaint under Rule 12(b)(6), see Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.2008), or enters judgment under Rule 12(c), see Leamer v. Fauver, 288 F.3d 532, 535 (3d Cir.2002). We review decisions to decline to exercise supplemental jurisdiction for abuse of discretion. See Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172, 175 (3d Cir.1999). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471878/ | OPINION
PER CURIAM.
Appellant Nina Shahin, a pro se litigant, seeks review of the District Court’s Febru*816ary 26, 2009, 2009 WL 485168, Order granting Defendants’, the State of Delaware and the State of Delaware Department of Transportation (together “the State,”) motion to dismiss under Rule 37(b) of the Federal Rules of Civil Procedure. For the reasons set forth below, we will affirm.
I.
On July 20, 2007, Shahin filed a lawsuit alleging employment discrimination by reason of age. Shahin claimed that the State discriminated against her on the basis of her age when they failed to employ her as an Assistant Director of Financial Management. On February 20, 2008, the District Court issued discovery and scheduling orders to the parties, directing discovery to be completed by August 21, 2008, and summary judgment motions to be filed by October 21, 2008. Both before and after Shahin filed the action at issue here, she filed various other lawsuits in the District Court against the State of DelaT ware and several of its agencies. In an apparent effort to litigate all of the eases together, Shahin filed an untimely motion to consolidate on May 20, 2008.1
While Shahin’s motion to consolidate was pending, on June 10, 2008, the State served discovery requests upon Shahin. When Shahin did not timely respond to the discovery requests, the State corresponded with her on two occasions, July 22, 2008, and July 25, 2008. Shahin responded to the July 22, 2008 letter stating that she had several lawsuits pending, did not have the time or the money to respond to the discovery, and would wait for the District Court’s ruling on her motion to consolidate before providing discovery. She did not respond to the July 25, 2008 letter. The State then filed a motion to compel on August 19, 2008. Shahin did not respond to the motion. Finally, on October 22, 2008, the State, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, moved to dismiss the case as á result of Shahin’s failure to prosecute or comply with the District Court’s scheduling order. The District Court subsequently granted the State’s motion and dismissed Shahin’s. complaint with prejudice. A timely appeal followed.
II.
We review for abuse of discretion the District Court’s decision to dismiss the complaint as a sanction for failure to comply with discovery obligations. Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 538 (3d Cir.2007). “Although we have held that dismissal is a harsh remedy and should be resorted to only in extreme cases,” we have similarly recognized that “[district court judges, confronted with litigants who flagrantly violate or ignore court orders, often have no appropriate or efficacious recourse other than dismissal of the complaint with prejudice.” Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir.1992).
Rule 37(b)(2)(A) of the Federal Rules of Civil Procedure authorizes a district court to dismiss an action should a party fail to obey an order to provide or permit discovery. See Fed.R.Civ.P. 37(b)(2)(A). In assessing the propriety of such an action, we have stated that
we will be guided by the manner in which the trial court balanced the following factors, which have been enumerated in the earlier cases, and whether the record supports its findings: (1) the ex*817tent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense.
Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir.1984). As we have previously observed, the balancing of these factors is not a mechanical exercise; “not all of the Potáis factors need be satisfied in order to dismiss a complaint.” Mindek, 964 F.2d at 1373. On appeal, we afford the District Court’s decision “great deference” in view of the fact that, unlike us, the District Court has had direct contact with the litigants and is intimately familiar with the disruptions and difficulties caused by the behavior that led to the punitive dismissal. Id.
Given the District Court’s careful consideration and application of the Potáis factors, we cannot say that the District Court abused its discretion in dismissing Shahin’s case. First, any delay or failure to follow the District Court’s order was directly attributable to Shahin, as she was representing herself pro se. Second, the State has been prejudiced in its inability to adequately prepare for trial, by Shahin’s delay and her failure to comply -with the District Court’s orders. Third, the District Court noted that Shahin’s refusal to participate in discovery and to follow court orders has been ongoing. While the District Court did not make explicit findings as to whether Shahin’s conduct was willful or in bad faith, it did note, and we agree, that Shahin appears to rely upon her many pending lawsuits to excuse her from prosecuting this case.2 Lastly, and perhaps most importantly, Shahin’s claim does not appear meritorious. She alleges age discrimination pursuant to the Age Discrimination in Employment Act (“ADEA”). See 29 U.S.C. § 623. The defendants are the State of Delaware and its agency, the Department of Transportation. The Eleventh Amendment protects states and their agencies and departments from suit in federal court regardless of the kind of relief sought. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). The State has not waived its sovereign immunity under the Eleventh Amendment and Congress did not validly abrogate the States’ sovereign immunity to ADEA suits filed by private individuals. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000).3
Accordingly, we will affirm the judgment of the District Court.
. The scheduling order directed all motions to join parties and amend pleadings to be filed by April 21, 2008.
. Shahin’s argument that she was somehow authorized to delay responding to the State's discovery requests because her motion to consolidate was still pending is untenable. The record is void of any Court-ordered stay or request to stay the proceedings and Shahin provides no legal authority which might support her assumption.
. In her Reply Brief, Shahin argues that “by adopting Senate Bill No. 154 the Delaware Legislature waived that sovereign immunity right in cases of discrimination in employment (including age discrimination) and made that law a part of the Delaware Constitution (Title 19 Labor, Chapter 7 Employment Practices Subchapter II Discrimination in Employment.)” (See Reply Brief at 7) (internal quotations omitted) However, Shahin’s complaint does not allege that the State violated Delaware’s Discrimination in Employment Act ("DDEA”). See 19 Del. C. § 710. Furthermore, Delaware’s enactment of its own state law does not abrogate the State's sovereign immunity to ADEA suits filed by private individuals. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471880/ | OPINION
PER CURIAM.
James Void, a federal prisoner proceeding pro se, appeals from the order of the United States District Court for the District of New Jersey denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in which he challenged his prison disciplinary hearing and resulting sanctions. For the following reasons, we will affirm.
Void is currently confined in the Federal Correctional Institution at Fort Dix, New Jersey (FCI-Fort Dix). On July 11, 2007, Void was called to the Security Office to provide a urine sample for drug testing. He was given two hours to provide the urine sample. Void did not urinate until fifteen minutes past the two-hour deadline. The officer refused the urine sample and *819served Void with Incident Report No. 1618908, charging him with refusing to provide a urine sample in violation of Disciplinary Code Section 110. Void received a written notice of his rights on July 12, 2007. The incident report was referred to prison Disciplinary Hearing Officer Boyce (“DHO”), who held a hearing on July 17, 2007. At the hearing, Void confirmed that he understood his rights and he declined the assistance of a staff representative. He denied the charge, explaining that “I could not provide the sample with in two hours. I did give a sample fifteen minutes past the time limit, but they would not take it. I had a urine sample in October, 2006. I have documented evidence that I had a previous injury that prohibited me from urinating, but it is not in my file.” Void did not present any witnesses or other evidence in support of his case. Following the hearing, the DHO issued a written decision finding Void guilty of the charged offense. The DHO subsequently imposed the following sanctions: disallowance of forty days of good conduct time; sixty days of disciplinary segregation; and a 180-day loss of visiting privileges.
On March 18, 2008, Void filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, alleging that his due process rights had been violated during the disciplinary process.1 Specifically, Void claimed that: (1) the charging officer discriminated against him because he was black by not accepting his urine; (2) the charging officer failed to follow BOP Program Statement 6060.08 (“Urine Surveillance and Narcotic Identification”), which allows staff to extend the two-hour limit if warranted by specific situations; (8) contrary to the finding of the Regional Director, he did in fact advise the officer on July 11, 2007, that he had a medical problem that made it difficult for him to urinate; (4) and his due process rights were seriously violated when he was punished with the loss of forty days in good time credits “for being fifteen minutes late with a urine sample.” (Memorandum in support of § 2241 petition, at 4). By order entered May 30, 2008, 2008 WL 2237026, the District Court summarily dismissed the petition. Void filed a motion for reconsideration to which he attached a prison medical record report dated June 4, 2008, indicating that he had had a biopsy of his prostate in December 2007, and that his provisional diagnosis on June 4, 2008, was “prostatic obstruction.” The District Court denied reconsideration, ruling that the recently acquired medical record did not alter the court’s opinion that Void was afforded all the process he was due under Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The District Court noted that Void had admitted at the hearing that his urine sample was late and that his record contained no documentary evidence of his medical condition. Void now appeals from the District Court’s orders.
We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 2253(a). We review a District Court’s denial of habeas corpus relief de novo. Marshall v. Hendricks, 307 F.3d 36, 50 (3d Cir.2002). We review the District Court’s factual findings for clear error. See, e.g., Ruggiano v. Reish, 307 F.3d 121, 126 (3d Cir.2002).
It is well established that “prison disciplinary proceedings are not part of a criminal prosecution and the full panoply of rights due a defendant in such proceedings does not apply.” Wolff, 418 U.S. at 556, 94 S.Ct. 2963. The Supreme Court has, how*820ever, recognized a set of minimum procedural protections that must apply to prison disciplinary proceedings when, as in this case, a prisoner’s good-time credit is at stake.2 Id. Specifically, when good-time credit is at stake, a prisoner is entitled to: (1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety or correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action. Id. at 563-67, 94 S.Ct. 2963. “Revocation of good time does not comport with the minimum requirements of procedural due process unless the findings of the prison disciplinary board are supported by some evidence in the record.” Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985) (internal quotation and citation omitted). The “some evidence” standard is a quite deferential one. It does not require examination of the entire record, independent assessment of the credibility of witnesses or the weighing of evidence. Id. at 455-56, 105 S.Ct. 2768. The court need only consider whether there was any evidence in the record that could support the conclusion reached by the prison disciplinary deci-sionmaker. Id.
Upon review, we agree with the District Court that Void received all the process he was due during the disciplinary proceedings. The record reveals that Void was given 24 hours’ notice of the charges against him in accordance with 28 C.F.R. § 541.17(a); that he was provided the opportunity to call witnesses and present documentary evidence in his defense; and that he was issued a written decision setting forth the evidence relied on, and reasons for, the disciplinary action. See Wolff, 418 U.S. at 563-67, 94 S.Ct. 2963.
Furthermore, although the evidence of willfulness was spare and the penalty rather severe under the circumstances, we are constrained to conclude that the DHO’s findings wei'e supported by “some” evidence in the record. The DHO based the guilty finding on the charging officer’s report and on Void’s admission that he did not provide a sample with the two hour deadline, that he provided one fifteen minutes later, and that the officer would not take it, as corroborating the officer’s report. We agree with the District Court that this evidence meets the minimal requirements imposed by the Due Process Clause.3 See Hill, 472 U.S. at 454, 105 S.Ct. 2768.
As for Void’s contention that the prison failed to follow BOP Program Statement 6060.08 (“Urine Surveillance and Narcotic Identification”), the BOP Program Statement permits extensions of time to provide a urine sample in specific circumstances, including, inter alia, when the inmate has a documented medical condition. Here, there was no documentation *821of Void’s medical condition in his prison record at the time he was asked to give a urine sample or at the time of his disciplinary hearing. The record does not support Void’s contention that he told the charging officer about his medical condition. The Regional Director noted that there was no indication in the hearing record that Void told the charging officer of his medical condition. (See Appeal Response of Regional Director Dodrill, at 2.). In his Central Office Administrative Remedy Appeal, Void claimed only that “he requested to be placed in a secure, dry room until his nerves calm down enough to urinate.” (See Void’s Administrative Appeal dated October 23, 2007, at 1).
The District Court properly denied Void’s motion for reconsideration. See Max’s Seafood Café v. Quinteros, 176 F.3d 669, 673 (3d Cir.1999) (abuse of discretion standard).
Accordingly, we will affirm the District Court’s order denying Void’s petition for writ of habeas corpus.
. With an exception noted below, Void exhausted his administrative remedies before initiating the present action.
. While the Due Process Clause protects against the revocation of good-time credit, it does not provide the same level of protection against the other forms of discipline that Void received. See Torres v. Fauver, 292 F.3d 141, 150-51 (3d Cir.2002) (citing Sandin v. Conner, 515 U.S. 472, 486, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)).
. Void failed to properly exhaust his race-based disciplinary claim through the appropriate prison channels. A federal prisoner must exhaust his administrative remedies before petitioning for a writ of habeas corpus pursuant to § 2241. Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 760 (3d Cir.1996). Proper exhaustion requires that a petitioner assert an issue or claim at every administrative level. Id. at 761. Here, Void did not raise the issue of the charging officer's alleged race-based discriminatory behavior in his administrative appeals and he would be foreclosed from doing so now. Hence, his claim was properly dismissed. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471882/ | OPINION
PER CURIAM.
Petitioner Passang Tenzin seeks review of a final decision by the Board of Immigration Appeals (“BIA”) issued on August *8221, 2008. For the reasons that follow, we will deny the petition for review.
I. Background
Tenzin is a native of Tibet and a citizen of China. He claims that, in 1994, he became a Buddhist monk and began living in a monastery. In 2002, upon discovering a Dalai Lama prayer book in his room, Chinese authorities allegedly arrested him, assaulted him, and imprisoned him for three months. After his release, Tenzin fled Tibet. During a stay with an uncle in India, Tenzin stopped being a monk and got married. Tenzin eventually entered the United States on a fraudulent Nepalese passport. He applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), claiming past persecution and a well-founded fear of future persecution and torture based upon his religion.
After a hearing, the Immigration Judge (“IJ”) rendered an oral decision on January 24, 2007. The IJ recognized that Tibetan monks face serious persecution at the hands of the Chinese government and expressed great sympathy for those who face such a plight. However, the IJ found a serious conflict between Tenzin’s testimony and his proffered documentary evidence. Specifically, Tenzin submitted a household registry document issued in the year 2000, during the time that Tenzin claimed he had been living full-time at the monastery. According to the IJ, the document showed that Tenzin lived and worked at home with his family, not in a monastery. This “complete contradiction with [his] testimony” called into question the fundamental issue of Tenzin’s identity as a monk. Coupled with a lack of corroborating evidence, this credibility issue led the IJ, “with heavy heart,” to deny Tenzin’s application.
On August 1, 2008, the BIA issued a decision agreeing with the IJ’s conclusion that Tenzin did not meet his burden of proof due to a lack of credibility and of corroborating evidence. The BIA affirmed the IJ’s decision and dismissed Tenzin’s appeal. This petition for review followed.
II. Analysis
We generally review only final orders of the BIA. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.2005); Abdulai v. Ashcroft, 239 F.3d 542, 548-49 (3d Cir.2001). However, where the BIA adopts the IJ’s reasoning and discusses some of the bases of the IJ’s decision, we also review the IJ’s order. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We review legal conclusions de novo, see Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir.2003), and uphold factual determinations if they are supported “by reasonable, substantial and probative evidence on the record considered as a whole.” Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir.2004). Ultimately, for Tenzin to succeed on his petition for review, this Court “must find that the evidence not only supports that conclusion [, that the application should have been granted], but compels it.” INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).
A.
The BIA upheld the IJ’s finding that Tenzin was not credible because of inconsistencies concerning his identity as a Buddhist monk. We review adverse credibility determinations for substantial evidence. Chen v. Ashcroft, 376 F.3d 215, 221-22 (3d Cir.2004). Accordingly, we will affirm the adverse credibility finding if it is supported by “reasonable, substantial, and probative evidence on the record considered as a whole.” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). To reverse, the evidence of Tenzin’s credibility must be so strong “that in a civil trial he would *823be entitled to judgment on the credibility issue as a matter of law.” Chen, 376 F.3d at 222.
We conclude that the adverse credibility determination rests upon substantial evidence. The IJ provided specific, cogent reasons for concluding that Tenzin’s testimony lacked credibility. As the BIA summarized: although Tenzin “testified that he lived in the monastery from 1994 until 2002, a household registry ... indicates that he was living at his parents’ house in June 2000” and “lists his place of employment as ‘Second Village, Gyama Town, Medo Gungkar County, Tibet,”’ Because Tenzin’s identity as a monk is critical to his application, these apparent conflicts go to the “heart” of Tenzin’s claims.1 See Berishaj v. Ashcroft, 378 F.3d 314, 323 (3d Cir.2004).
In response, Tenzin argues that the IJ’s determination improperly rested upon unsupported speculation. Specifically, Ten-zin claims that the IJ should have accepted his testimony explaining that: (1) the household registry document indicates his status as a member of his family, but does not address whether he lived with his family or in a monastery; and (2) being a monk is not considered employment in China, so the household registry document does not describe him as a monk. Tenzin contends that when the IJ declined to accept these explanations, the IJ was improperly speculating as to the meaning of the household registry document.
We disagree. Tenzin’s testimony may offer one plausible interpretation of the document. However, the IJ need not have accepted Tenzin’s unsupported interpretation because it is not consistent with the face of the document itself. The registry document refers repeatedly to “residency registration” and indicates that it is “used ... to investigate and check the residency of the relevant residents.” A.R. 195. Given the plain meaning of the word “residency,” the IJ logically concluded that the registry document indicates that Tenzin resided with his family during the very time that he testified to residing full-time in a Tibetan monastery. See A.R. 201. The IJ’s interpretation of the document is reasonably grounded in the document’s plain language and does not rest upon mere speculation.
Tenzin bore the burden to establish the elements of his claims.2 Tenzin failed to meet that burden. He offered only his own testimony to contradict the plain language of the household registry document.3 Without evidence substantiating his interpretation, and given the absence of any additional evidence in the record corroborating Tenzin’s alleged status as a monk, there is substantial support in the record for the IJ’s conclusion that the *824household registry document undermined Tenzin’s credibility.
B.
Tenzin also argues that the IJ erred by concluding that Tenzin should have produced evidence to corroborate his identity as a monk. A failure to provide corroborating evidence may undermine an applicant’s case where: (1) the IJ identifies facts for which it is reasonable to expect corroboration; (2) the applicant fails to corroborate; and (3) the applicant fails to adequately explain the failure to corroborate. Chukwu v. Att’y Gen., 484 F.3d 185, 191-92 (3d Cir.2007). Even a credible applicant may be asked to provide evidence corroborating his testimony if it is reasonable to expect the applicant to do so. Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir.2001).
We conclude that the IJ’s request for corroboration in this case was reasonable in light of the conflicting evidence concerning Tenzin’s identity as a monk. The IJ suggested that Tenzin reasonably should have provided evidence from either the monastery or from his family members concerning his monkhood. When questioned about the lack of corroborating evidence, Tenzin did not provide a convincing explanation for its absence.4 See Chukwu, 484 F.3d at 191-92.
III. Conclusion
For the foregoing reasons, we will deny the petition for review.
. Because Tenzin filed his asylum application in 2004, the REAL ID Act, effective May II, 2005, does not apply to his claims. See 8 U.S.C. § 1158(b)(1)(B).
. To prevail on his asylum claim, Tenzin bore the burden to establish that he suffered past persecution or has a well-founded fear of future persecution in China. See Gao v. Ashroft, 299 F.3d 266, 272 (3d Cir.2002). To meet the more stringent standard for withholding of removal, Tenzin had to demonstrate a “clear probability” of future persecution — that he would "more likely than not” be persecuted in China. See INS v. Cardoza-Fonseca, 480 U.S. 421, 449-50, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). Finally, for relief under the CAT, Tenzin bore the burden of proving through objective evidence that he would “more likely than not” face torture in China. See Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir.2004).
.Indeed, at the hearing before the IJ, Ten-zin’s counsel conceded that he failed to provide any evidence supporting Tenzin's proffered interpretation of the meaning of the household registry document. See A.R. 187— 88.
. Tenzin stated only that it would have been too dangerous for his family in Tibet to provide a statement on his behalf. However, neither the BIA nor the IJ accepted this as an adequate response because Tenzin’s family members were able to forward the household registry document to him. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471884/ | OPINION OF THE COURT
RENDELL, Circuit Judge.
In this appeal from the District Court’s grant of summary judgment in favor of the defendant Norman Y. Mineta, Secretary of the Department of Transportation, and against plaintiff Gianfranco Caprio, plaintiff contends that he suffered discrimination based on his physical impairment, in violation of the Rehabilitation Act of 1973, §2 et seq., 29 U.S.C.A. § 701 et seq.; Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq. We must decide two issues: (1) whether Caprio’s first Equal Employment Opportunity Commission (“EEOC”) charge was properly dismissed as untimely; and (2) whether the District Court correctly concluded that insufficient evidence supported Caprio’s claims that he was “disabled,” and that, based on this disability, the defendant discriminated against him. Finding no error in the District Court’s analysis, we will affirm the grant of summary judgment.
Caprio was employed as an air transportation systems specialist for the defendant in Newark, New Jersey in January 1999, when he suffered a medial-meniscus tear in his knee. After undergoing surgery Caprio abstained from his job, which in*826volved climbing towers, on his doctor’s advice. During his recovery, Caprio sustained further injury to his knee, requiring a second operation in March 2000. Caprio was out of work from January 1999 to July 2000. In 1999, Caprio toured the Newark site on two occasions with either crutches or a cane.
In a letter to Caprio in June 2000, defendant proposed to remove plaintiff from his position because he was unavailable for duty. The letter noted that defendant had previously asked Caprio to indicate his anticipated date of return to duty, and that, in response, Caprio had transmitted a letter from his physician indicating that he was unable to work at that time.
Caprio returned to work in a limited duty capacity on July 6, 2000, as his doctor advised against his climbing towers or bending and squatting. Caprio had a new supervisor, Raguey Manseour, who had assumed that position while plaintiff was on leave. Caprio was assigned to sedentary work at defendant’s Airway Facilities Division in Garden City, Long Island (“Liberty SMO”), which resulted in a four-hour daily commute. One month later, Caprio returned to work at the Newark site without restrictions.
Caprio sought EEOC counseling in October 2000 and filed his first EEOC charge approximately three months later in January 2001. Caprio’s first charge focused on his transfer to Liberty SMO, and the lack of cooperation and administrative assistance provided to him by the defendant after his injury. The EEOC dismissed as untimely plaintiffs allegation that hostility toward his physical impairment prompted the transfer to Liberty SMO; however, the EEOC accepted for investigation plaintiffs allegations of discrimination and harassment related to his administrative difficulties in 1999 and 2000.
In April 2002, Caprio filed a second EEOC charge, alleging that defendant engaged in a continuing pattern and course of conduct of harassment, discrimination on the basis of his knee injury, and reprisal based on his prior EEOC complaint. Caprio alleged, among other things, that defendant discriminated against him regarding leave, overtime, and training, and engaged in intimidation and harassment.
The Administrative Law Judge consolidated Caprio’s EEOC charges and issued a summary disposition in favor of the defendant. The EEOC affirmed, and Caprio subsequently sought relief in the District Court, arguing that the defendant violated the Rehabilitation Act by (1) discriminating against him based upon his disability, (2) subjecting him to a hostile work environment based on his disability, and (3) retaliating against him for engaging in protected activity. The District Court granted summary judgment in favor of defendant. Caprio appealed.1
Caprio’s first contention is that the District Court erred in dismissing certain allegations in his first EEOC charge as untimely. Under the Rehabilitation Act, a plaintiff must seek EEOC counseling within 45 days of the “discrete” discriminatory act alleged. .Here, Caprio did not seek EEOC counseling until October 2000 — approximately three months after his assignment to Liberty SMO in July 2000. Ca-*827prio makes two arguments in this regard: (1) that his temporary transfer to Liberty SMO did not constitute a “discrete” act triggering the 45-day consultation deadline; and (2) that he did not discover that his transfer was discriminatorily motivated until September 2000 — after the 45-day deadline had elapsed.
Caprio’s first argument is easily dispatched. Caprio’s transfer to Liberty SMO resulted in a substantial modification of his job responsibilities. Caprio’s prior position involved manual labor, including climbing towers; however, Caprio performed solely sedentary work at Liberty SMO. Further, the transfer to Liberty SMO increased his daily commute time to four hours. This additional travel time, which was uncompensated, represented a meaningful change from his prior job in Newark, New Jersey. Hence, Caprio’s transfer was at least as significant as other employment acts that we have deemed “discrete” adverse actions, including termination, failure to promote, denial of transfer, refusal to hire, wrongful suspension, wrongful discipline, denial of training, and wrongful accusation. O’Connor v. City of Newark, 440 F.3d 125, 127 (3d Cir.2006).2 Moreover, Caprio based his first EEOC charge in large part on this transfer.
Caprio’s second contention — that his violation of the consultation requirement should be excused because he only discovered the discriminatory motive for his transfer after the deadline had elapsed — is also meritless. Federal regulations permit an extension of the 45-day time period, where a plaintiff “did not know and reasonably should not have ... known” that the discriminatory matter or personnel action occurred. 29 C.F.R. § 1614.105(a)(2). Here, Caprio maintains that he did not know that his transfer was discriminatorily motivated until a colleague informed him that other employees with mobility restrictions had been reassigned to positions in the Newark office, and had not been transferred to Liberty SMO.
Caprio, however, must demonstrate that his lack of awareness as to defendant’s actual motivation was reasonable. See McCants v. Glickman, 180 F.Supp.2d 35, 40 (D.D.C.2001) (rejecting extension of 45-day deadline where plaintiff had a “reasonable suspicion” of discriminatory motive based on facts known to him); see also Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924, 931 (5th Cir.1975) (noting that 90-day requirement to file EEOC charge begins to run when “facts that would support a charge of discrimination under Title VII were apparent or should have been apparent to a person with a reasonably prudent regard for his rights similarly situated to the plaintiff’); cf. Pacheco v. Rice, 966 F.2d 904, 906-907 (5th Cir.1992) (denying equitable tolling of the limitations period because a complainant has a duty of “diligent inquiry ... to proceed with a reasonable investigation in response to an adverse event”). Caprio does not contend that defendant prevented his access to information regarding how other *828mobility-restricted employees were treated, or that such information was not reasonably discoverable. To the contrary, Caprio acknowledges that he was able to glean this information through an informal conversation with a co-worker. Moreover, in his appellate brief, Caprio focused on purported conduct in early July, including his transfer, as apparently perceived by him at the time, as the basis for his claim:
Before any termination was effectuated, Caprio returned to work, on July 6, 2000, in a limited duty capacity with the assistance of a walking cane. Upon his return to work, he was treated with disrespect, and was essentially cast aside. He was detailed to the Liberty SMO (Sector Management Office), located in Garden City, Long Island, and asked to perform menial and degrading work. Travel time to and from Liberty SMO was approximately four hours per day. While at Liberty SMO, he spent about two hours per day performing filing duties.
Appellant’s Br. at 4 (emphasis added). On these facts, we conclude that Caprio clearly suspected that his transfer to Liberty SMO was discriminatorily motivated. Because Caprio failed to consult with the EEOC within 45 days of his transfer to Liberty SMO, and because he is ineligible for an extension of the 45-day deadline under § 1614.105(a)(2), the District Court properly dismissed Caprio’s first discrimination complaint as untimely.
Next, Caprio contends that the District Court erred in dismissing his hostile work environment, discrimination, and retaliation claims. Fatal to these claims, in the District Court’s view, was Caprio’s failure to establish either that he was disabled (or regarded as disabled), or that his disability motivated the adverse actions alleged. On appeal, Caprio urges that he was both actually disabled and regarded as disabled, because the defendant was fully aware that he was unable to perform his prior job, which required climbing towers, and that he could not ambulate without a cane.
Even if Caprio were able to establish an actual or perceived disability under the Rehabilitation Act, he fails to establish causation — to identify facts sufficient to create a triable issue as to whether his impairment motivated the discriminatory acts complained of, including his transfer to Liberty SMO, the denial of his requests for leave for medical visits, and the denial of training opportunities requested. See Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 (3d Cir.2000) (requiring proof of a “causal link” between the employee’s protected activity and the employer’s adverse action); Gaul v. Lucent Technologies, Inc., 134 F.3d 576, 580 (3d Cir.1998) (requiring proof that plaintiff suffered an adverse employment decision “as a result of discrimination”). Caprio fails to adduce any direct or indirect evidence that would support an inference that defendant’s actions' were motivated by discriminatory animus. To the contrary, the record discloses non-discriminatory reasons for the actions taken, including Ca-prio’s substantial delay in completing training, his failure to request leave in a timely manner, and his union activities. Because Caprio failed to adduce evidence sufficient for a reasonable jury to conclude that the discriminatory acts alleged were specifically motivated by hostility towards his physical impairment, summary judgment was proper.
For the foregoing reasons, we will AFFIRM the order of the District Court.
. The District Court had subject matter jurisdiction under 28 U.S.C. § 1331, and our jurisdiction is proper under 28 U.S.C. § 1291. Our review of the District Court's grant of summary judgment is plenary. Summary judgment is only appropriate if there are no genuine issues of material fact, and the mov-ant is entitled to judgment as a matter of law. In reviewing the District Court's grant of summary judgment, we review the facts in the light most favorable to the nonmoving party. AT & T Corp. v. JMC Telecom, LLC, 470 F.3d 525, 530 (3d Cir.2006).
. In O'Connor, plaintiffs had alleged a variety of discriminatory acts, including:
that the department denied him a promotion, failed to expunge his disciplinary record, transferred him to a position under the command of a superior officer who was hostile to him, provided him with inadequate staff and resources, assigned him excessive work, changed his work schedule, filed unwarranted disciplinary complaints against him, failed to credit him with overtime, awarded him a medal but failed to invite his family to the ceremony, and failed to give sufficient commendations to his unit. O’Connor also alleges that he was subjected to threats and assaults by other officers.
Id. at 126 n. 1. Significantly, we concluded that “nearly all" of these acts constituted “discrete" adverse employment actions. Id. at 127. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471886/ | OPINION
PER CURIAM.
Frank Freeland appeals pro se from the United States Tax Court’s Order and Decision granting the Commissioner of Internal Revenue’s (IRS) motion for summary judgment in this action to collect unpaid taxes. We will affirm.
I.
On March 30, 2007, following a Collection Due Process hearing (26 U.S.C. § 6330), the IRS Appeals Office in Philadelphia, Pennsylvania, issued a Notice of Determination approving a proposed levy upon Freeland’s property to collect unpaid income taxes for 2002 and 2003. Freeland timely sought review of this determination in the United States Tax Court. He argued, inter alia, that the Appeals Office improperly denied an opportunity to challenge the underlying determination of his tax liability. The IRS moved for summary judgment, arguing that the Appeals Office correctly precluded any challenge to the finding of liability because the IRS had *830mailed Notices of Deficiency to Freeland’s current address, and Freeland had failed to challenge those deficiency notices by filing a petition in the Tax Court.
Freeland elected not to appear on the date scheduled for a hearing on the summary judgment motion. On October 7, 2008, the Tax Court issued its Order and Decision entering summary judgment and allowing the collection action to proceed in accordance with the Notice of Determination. The Tax Court rejected Freeland’s claim that he was improperly denied an opportunity to contest the liability determination, and observed that Freeland made no showing of the issues that he would raise regarding his tax liability even if that question could be considered. The Tax Court noted that Freeland waived any further opportunity to challenge the Notice of Determination by failing to appear at the hearing, that Freeland’s arguments were otherwise groundless, and that the Appeals Office did not abuse its discretion. Freeland timely filed this appeal.1
II.
This Court has jurisdiction under 26 U.S.C. § 7482(a)(1). We exercise plenary review over the Tax Court’s entry of summary judgment. See Conn. Gen. Life Ins. Co. v. Comm’r, 177 F.3d 136, 143 (3d Cir.1999).
Freeland first contends that the Tax Court erred by “conducting a trial de novo rather than reviewing the record of Appellant’s Collection Due Process hearing.” According to Freeland, the Tax Court “admitted new evidence into the appeal” and failed to limit its review to the record before the Appeals Office. Freeland seems to object in particular to the evidence supporting the IRS’s motion for summary judgment on the question of its mailing of the 2002 and 2003 Notices of Deficiency.
We agree with the IRS that this contention lacks merit. The Tax Court expressly adjudicated Freeland’s appeal as a matter of law, and did not conduct a “trial de novo.” In its own words, the Tax Court held that “there is no genuine issue of material fact, ... no abuse of discretion occurred, and ... judgment may be entered as a matter of law.” We are satisfied that the Tax Court’s review was appropriate. Furthermore, in light of Freeland’s contention that he should be permitted to challenge the underlying determination of tax liability because he purportedly never received the Notices of Determination, the Tax Court did not im-permissibly expand the record by considering evidence of mailing (i.e., the USPS Forms 3877) that merely confirmed the basis for the Appeals Office’s finding that the Notices of Deficiency were in fact properly mailed to Freeland. See Robinette v. Comm’r, 439 F.3d 455, 462 (8th Cir.2006) (“[WJhere a record created in informal proceedings does not adequately disclose the basis for the agency’s decision, then it may be appropriate for the reviewing court to receive evidence concerning what happened during the agency proceedings. The evidentiary proceeding in those circumstances, however, is not a de novo trial, but rather is limited to the receipt of testimony or evidence explaining the reasoning behind the agency’s decision.”) (citation omitted).
Freeland next argues that the Tax Court erred in affirming the determination that the IRS properly delivered the Notices of Deficiency. Freeland claims that *831he “does not recall” receiving the Notices, and because he claims that the IRS failed to prove that he received the Notices, Freeland argues that he was impermissi-bly denied an opportunity to challenge the underlying determination of his tax liability-
A taxpayer at a Collection Due Process hearing can challenge the “existence or amount of the underlying tax liability for any tax period” if the taxpayer “did not receive any statutory notice of deficiency for such tax liability or did not otherwise have an opportunity to dispute such tax liability.” 26 U.S.C. § 6330(c)(2)(B). Here, the Appeals Office found, and the Tax Court affirmed, that Freeland was properly served with the Notices of Deficiency. The IRS submitted copies of the Notices along with evidence establishing certified mailing to an address that Freeland does not dispute is his proper mailing address. Freeland made no showing at all to overcome the presumption that proper mailing of the Notices was sufficient evidence of their delivery in this case. Freeland’s claim that he does not “recall” receiving the Notices does not undermine the finding of proper mailing.2 Consequently, because Freeland did not timely contest the Notices of Deficiency, the Appeals Office and the Tax Court did not err in precluding a challenge to the underlying liability determinations.
Freeland also suggests, as he did before the Tax Court, that the Appeals Office erred in failing to afford him a face-to-face Collection Due Process hearing. The Appeals Office found that Freeland failed to present any non-frivolous challenge to the proposed levy. Freeland has made no showing to rebut that conclusion. A Collection Due Process hearing need not be face-to-face when the petitioner raises only frivolous arguments. See 26 C.F.R. § 301.6330-l(d)(2)(A-D8) (“A face-to-face CDP conference concerning a taxpayer’s underlying liability will not be granted if the request for a hearing or other taxpayer communication indicates that the taxpayer wishes only to raise irrelevant or frivolous issues concerning that liability.”). We discern no error in the decision to afford Freeland a telephonic hearing only.
We have considered Freeland’s remaining contentions and find them without merit. We will affirm the Tax Court’s decision.
. On November 14, 2008, Freeland filed a "Motion to Vacate Order and Decision,” which the Tax Court denied on November 18, 2008. Freeland does not expressly challenge on appeal the decision to deny his Motion to Vacate, and thus we limit our analysis to the Tax Court's October 7, 2008, Order and Decision.
. In addition, Freeland's attempt to case doubt upon delivery of the Notices is undermined by the record evidence that: (1) he attached a copy of the 2003 Notice of Deficiency to his Amended Petition before the Tax Court, suggesting that he had received at least the 2003 Notice; (2) he stated to the Appeals Office, "I don’t open my mail anymore,” which is hardly evidence of non-delivery; and (3) he appears to have received every other item that the IRS has mailed to the same address in this matter. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471888/ | OPINION
SMITH, Circuit Judge.
Appellant Anthony Guinto pleaded guilty to conspiracy to distribute heroin, in violation of 21 U.S.C. § 846, possession with intent to distribute heroin, in violation of 21 U.S.C. § 841, and two counts each of distx*ibution of hex-oin, in violation of 21 U.S.C. § 841(a)(1), and aiding and abetting, in violation of 18 U.S.C. § 2. The District Court sentenced him to fifty months of imprisonment followed by ten years of supervised release. Guinto filed a timely appeal challenging the X’easonableness of his term of supervised release.1
*833All parties agree that Guinto’s properly calculated Sentencing Guidelines range for supervised release was exactly six years. We believe it plain, however, that the District Court miscalculated that range to be at least six years. At sentencing, the Court twice referenced Guinto’s Guidelines range for supervised release, and twice stated that it was “at least six years.” The Presentence Investigation Report also listed the range as “at least six years.” Finally, before imposing a sentence, the Court said that it was “prepared to sentence within the sentencing guidelines,” “intended] to sentence within the guidelines ...,” and “intended] to sentence within the guidelines as calculated by the probation office.” The only way to reconcile these three statements with Guinto’s sentence to an above-Guidelines ten-year term of supervised release is to conclude that the District Court mistakenly believed Guinto’s Guidelines range for supervised release to be at least six years. Therefore, the record clearly demonstrates that the District Court miscalculated the applicable Guidelines range.
The Government argues that we should affirm Guinto’s sentence on the basis that the deviation from the properly calculated Guidelines range was a permissible variance based on the factors listed in 18 U.S.C. § 3558(a). We disagree. A district court can only apply a variance after it correctly calculates the applicable Guidelines range. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007) (“[A] district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range.”); United States v. Tomko, 562 F.3d 558, 567 (3d Cir.2009) (en banc) (“ ‘A district court must begin the [sentencing] process by first calculating the applicable Guidelines range.’ ” (quoting United States v. Levinson, 543 F.3d 190, 194-95 (3d Cir.2008))). Therefore, whether the District Court applied a variance is beside the point; the relevant inquiry is whether its Guidelines calculation contained an error.
Moreover, the record is clear that the District Court imposed an above-Guidelines term of supervised release, not because it believed a variance was appropriate, but because it miscalculated the applicable Guidelines range. The Court never used the term “variance” to describe Guinto’s ten-year term of supervised release. Instead, it told Guinto that it would impose “a more extended period of supervised release.” This characterization is entirely consistent with both a mistaken belief that Guinto’s Guidelines range was “at least six years” of supervised release and the Court’s express intention to “sentence within the guidelines”: the ten-year term reflected a “more extended period” that was still “within the guidelines” range of “at least six years.” In contrast, viewing the Guinto’s sentence as a variance is, by definition, at odds with the Court’s statements that it would “sentence within the guidelines.” See United States v. Vampire Nation, 451 F.3d 189, 195 n. 2 (3d Cir.2006) (noting that variances are “not based on a specific Guidelines departure provision”). Therefore, it is plain that the District Court erroneously calculated Guinto’s Guidelines range for supervised release.
Notwithstanding the obviousness of this Guidelines miscalculation, Guinto did not object in the District Court, nor did he fully brief the issue on appeal until he filed his reply brief. Had Guinto sufficiently raised the issue in his opening brief, we would have little trouble holding that the Guidelines miscalculation required a remand even under plain error review. See United States v. Knight, 266 F.3d 203, 207-08 (3d Cir.2001) (concluding that “an error in application of the Guidelines that results in use of a higher sentencing range *834should be presumed to affect the defendant’s substantial rights” and that the practical effect of this presumption “is that a sentence based upon a plainly erroneous Guideline range will ordinarily be remanded so that the District Court may exercise its discretion to choose an appropriate sentence based upon the correct range, unless the record shows that the sentence was unaffected by the error”). As it stands, however, the untimely manner in which Guinto offered this assertion poses a significant obstacle to relief because “[a] reply brief is generally too late to raise an issue under our jurisprudence.” United States v. Geevers, 226 F.3d 186, 196 n. 9 (3d Cir.2000).
While we rarely grant exceptions to this general rule, we have done so where the appellee had an opportunity to respond to the issue and other compelling circumstances existed. See United States v. Boggi, 74 F.3d 470, 478 (3d Cir.1996). In Boggi, we addressed two arguments raised for the first time in the appellant’s reply brief because “the Government had an opportunity to respond to the arguments” in its cross-appeal, and one of the appellant’s arguments “raises a question which we feel requires clarification in this circuit.” Id. Likewise, here, the Government apparently construed Guinto’s opening brief as asserting an error in the Guidelines calculation: it argued in its brief that we should view the above-Guidelines term of supervised release as a variance “if the [district] court did not even recognize that it was exceeding the guideline range, as Guinto suggests.... ” Additionally, we believe the District Court’s error so plain and, in light of its repeated statements that it intended to sentence Guinto within the Guidelines range, the resulting prejudice so manifest that the circumstances compel us to excuse Guinto’s belated raising of the Guidelines miscalculation issue. Accordingly, we will vacate Guinto’s sentence and remand the case to the District Court for resentencing.
. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471892/ | OPINION
SLOVITER, Circuit Judge.
Appellant Ely Bell pled guilty to conspiracy to distribute and possess with intent to distribute cocaine base, in violation of 21 U.S.C. § 846, and the District Court sentenced him to a below-Guidelines sentence of 100 months imprisonment. On appeal, Bell challenges only the reasonableness of his sentence. We will affirm.
I.
In 2007, federal and Pennsylvania law enforcement personnel commenced an investigation of a suspected drug trafficking ring in Bradford County, Pennsylvania. During the course of that investigation, Bell directly participated in the sale of crack cocaine to undercover officers. Following one such transaction, Bell and a co-conspirator were arrested. Ultimately, a six-count Indictment was returned against Bell and two coconspirators alleging a drug conspiracy to distribute in excess of five grams of cocaine base and related offenses.
In January 2008, pursuant to a written plea agreement, Bell pled guilty to one count of conspiracy to distribute and possess with intent to distribute cocaine base in violation of 21 U.S.C. § 846. The government agreed to drop the remaining charges in the Indictment, to amend the conspiracy count to reflect a non-specific amount of cocaine base, and to recommend a three-level downward departure for acceptance of responsibility. The government also moved for a downward departure of two levels for substantial assistance.
At Bell’s sentencing hearing, the District Court adopted, without objection from either party, the findings of the Pre-sentence Investigation Report (“PSR”) filed by the Probation Office.1 In light of two prior felony drug convictions and a conviction for a crime of violence, Bell was categorized as a career offender under the Sentencing Guidelines. Including a three-level departure for acceptance of responsibility, Bell therefore faced an offense level of twenty-nine and a criminal history cate*839gory of VI, resulting in an advisory Guidelines sentencing range of 151 to 188 months imprisonment. The District Court also granted the government’s motion for a two-level departure for substantial assistance, which reduced Bell’s Guidelines range to 180 to 162 months imprisonment.
The District Court then heard argument from both parties regarding an appropriate sentence in light of the sentencing factors contained in 18 U.S.C. § 3553(a). Bell emphasized his acceptance of responsibility, his very difficult upbringing — his parents separated when he was twelve, and he lived with his mother and aunt, who were both addicted to drugs, until he was moved to foster care — and his history of substance abuse and psychiatric illness, including a diagnosis of schizophrenia before age sixteen. Bell also noted that, as a consequence of his cooperation with the government in this case, he was assaulted in prison. In light of these factors, Bell requested a sentence of no more than eighty-four months imprisonment. The government conceded that Bell’s past was an important mitigating factor and recommended a sentence at the bottom of the Guidelines range in light of Bell’s extensive criminal history, the need for deterrence, and the need for public safety.
As noted above, the District Court imposed a sentence of 100 months imprisonment. The Court expressly found that Bell’s difficult past supported a reduced sentence, but also concluded that it must balance that past against his extensive criminal record and the need for deterrence. Accordingly, the Court imposed a substantially below-Guidelines sentence that was between the sentences requested by Bell and the government.2
II.
We review the reasonableness of a sentence under an abuse-of-discretion standard. See United States v. Tomko, 562 F.3d 558, 564 (3d Cir.2009) (en banc). We have outlined a three-step process for district courts to follow in imposing a sentence. First, the court must calculate the applicable Guidelines range. Second, it must rule on any motions for departures pursuant to the Guidelines. Finally, it must consider the § 3553(a) sentencing factors to determine the appropriate sentence. See id. at 567.
Here, Bell does not identify any procedural error by the District Court. Indeed, the District Court adopted the correct calculation of the Guidelines range contained in the PSR, granted the government’s motion for a downward departure for substantial assistance, and heard argument from the parties regarding the appropriate sentence. The District Court explained on the record its reasons for the sentence imposed, including specific reference to the most relevant § 3553(a) factors.
The crux of Bell’s argument on appeal is that the sentence imposed was substantively unreasonable because the “District Court failed to give enough weight to Bell’s mental condition, upbringing, battle with substance abuse, and the reality of his criminal history.” Appellant’s Br. at 11. However, “if the district court’s sentence is procedurally sound, we will affirm it unless no reasonable sentencing court would have imposed the same sentence.” Tomko, 562 F.3d at 568. Here, the District Court acted well within its discretion. Indeed, it imposed a substantially below-Guidelines sentence in light of the mitigating factors identified by Bell. The District Court struek a balance between those mitigating *840factors, Bell’s extensive criminal history, and the need for deterrence. We cannot conclude that the Court’s weighing of these countervailing considerations was an abuse of discretion.
III.
For the above-stated reasons, we will affirm the judgment of conviction and sentence.
. Bell was sentenced under the 2007 version of the U.S. Sentencing Guidelines Manual.
. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 and we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471894/ | OPINION
SLOVITER, Circuit Judge.
Anthony Baker was convicted after a jury trial in the Court of Common Pleas of Philadelphia of third degree murder, conspiracy, and possession of an instrument of crime. He appeals the District Court’s denial of his petition for habeas corpus made on the ground that his trial counsel was ineffective for failing to interview and call at trial two potential alibi witnesses. We will affirm.
I.
Background
A. The Trial Court Proceedings
James Ward was murdered when two assailants shot him as he walked with three men on a Philadelphia street.
*841On two occasions — first just after the murder and again several months later— Cleveland Scott, one of the men with whom Ward was walking, told detectives that he could not identify the assailants. However, he later identified from an array of photographs Tyreek Corbett and petitioner Baker, whom Scott had known for nine years, as the gunmen. At trial, Scott explained that his earlier statements to detectives were intentionally false because he feared retaliation.
Another witness, Marion Cooper, claimed that she, too, could identify the shooters from her vantage point through a second floor window in a nearby abandoned house. During her first interview by detectives, Cooper falsely identified two random men from the photographs that she was shown but later, like Scott, identified the real gunmen as Corbett and Baker. At trial, Cooper claimed that she had lied because she was frightened and had not wanted to get involved.
The court sentenced Baker to an aggregate of ten to twenty years of imprisonment.
B. The PCRA Proceedings
Baker filed a pro se petition under the Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa. Cons.Stat. §§ 9541-9546, in relevant part arguing that trial counsel was ineffective for failing to interview and present at trial two purported alibi witnesses: Nakia Thrones, Baker’s live-in girlfriend at the time of the murder, and her sister, Takena Thrones. The PCRA Court held a hearing over three days and took testimony from the Thrones sisters, from Baker, from Baker’s mother, and from Baker’s trial counsel, Mark Green-berg.
Baker testified that, pre-trial, he had given Greenberg the Thrones sisters’ names as potential alibi witnesses, as well as the name of a friend named Cody who had visited Baker the day of the murder. Baker stated that he never told police about his alibi because it was only “during [his] incarceration” after “sitting and thinking about it over and over again” that he remembered that he had been in Na-kia’s apartment the night of Ward’s murder and that Takena had visited and told them that Ward had been shot. PCRA Tr. 11, Mar. 19, 2003. According to Baker, Greenberg had advised him not to call Nakia or Takena at trial because their close relationship with Baker and the one year time lapse between the date of the murder and the date when Baker was arrested would expose them to damaging impeachment. Baker admitted that he had agreed with Greenberg’s strategy to focus instead on undermining the prosecution’s case.
Sandra Baker, Baker’s mother, testified that she, too, told Greenberg about the Thrones sisters. Ms. Baker admitted, however, that she never introduced Nakia to Greenberg as an alibi witness even though she and Nakia had attended the trial together. Ms. Baker further acknowledged that, although she had addressed the quality of the Commonwealth’s case before the sentencing court, she did not mention any alibi witnesses.
Nakia testified generally that she was at home with Baker at the time of the murder. She also stated that one day, when she had jury duty, she stopped by Baker’s trial to “see what was going on” and met Greenberg, but that she did not discuss the alibi with him. PCRA Tr. 46, Mar. 19, 2003. She claimed that she did not tell the police that she could provide Baker an alibi because she “did not take [the murder charge] seriously because they probably could not get [Baker] on another charge and this was just an attempt to keep him incarcerated.” Id. at 51.
*842Takena testified that she first became aware that Baker had been charged with Ward’s murder when she read about his conviction in the newspaper. She also asserted that on the night of the murder, she was at a friend’s house when they heard shots close enough that they “jumped down” to the floor and then looked out the window. About “two minutes” later, Take-na left that apartment to meet a friend who was giving her a car ride to Nakia’s home. Id. at 39. On the way, they passed the scene of Ward’s murder where friends informed her that Ward had been shot. When she arrived at Nakia’s apartment, Takena told Natía and Baker that Ward had been gunned down.
Greenberg testified that he had no recollection of being given the names of alibi witnesses. He emphasized that he had interviewed all of the individuals whose names he was given. Baker’s counsel produced a letter dated March 2, 1998 from Greenberg to Baker in which Greenberg quoted Baker as having said that he was “with Nikia [sic] ... at the time of the shooting with an individual named Coty [sic] LNU,” and had “heard from three different sources the day after the shooting that [Ward] had gotten shot.” App. at 104. When asked if this refreshed his memory, Greenberg said:
[A]s I stand here today five years later, I don’t remember whether or not I spoke to [Natía]. I can say, however, that Mrs. Baker ... was very involved in this case and very involved in giving me witnesses to interview; and I can only assume ... that ... I would have interviewed Nikia [sic] based on Mrs. Baker’s involvement....
PCRA Tr. 5, Mar. 9, 2003. The Court asked Greenberg point-blank whether “[i]f he had been given the name ‘Nikia’ [sic] as a possible alibi witness, [he] certainly would have conducted an investigation and interviewed that person[?]” Id. at 6. Greenberg answered “Yes,” explaining that it was his “given practice” that “if there’s a witness who has to be interviewed, [he] will interview that witness.” Id. For further support, Greenberg referenced a March 9, 1998 memo from himself to Baker stating that Greenberg had interviewed Cody and that Cody had told him that, on the night of the murder, Cody and Baker were together at Baker’s apartment watching television and smoking marijuana. In that same memo, Greenberg also noted that Cody’s version of events was “contrary to [Baker’s] statement ... that he was with his girlfriend as well,” and requested that Baker “review [the] memo carefully, and get back to [him] with ... comments.” App. at 107-08.
Greenberg testified that he would not have put on a witness whom he found to be incredible even if what she stated might appear “on paper” to help the defense because she might, in the end, make the defendant look bad. PCRA Tr. 11, Mar. 18, 2003. Greenberg speculated that Na-kia’s testimony would have done just that because, as he had advised Baker, the jury would have seen her as biased and questioned her ability to remember that night after a year-long time lapse.
Applying Pennsylvania law for ineffective assistance of counsel, which the parties recognize is materially the same as federal law, compare Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) with Commonwealth v. Cox, 581 Pa. 107, 863 A.2d 536, 543 (2004), the PCRA Court denied Baker’s petition on three grounds: first, that Baker had agreed with Greenberg’s trial strategy; second, that Greenberg had a reasonable basis not to call the Thrones sisters, i.e., their testimony would appear incredible and biased; and third, that, given the eye-witnesses’ testimony, the Thrones sisters’ testimony would not have changed *843the outcome at trial. The Súperior Court of Pennsylvania summarily denied Baker’s appeal.
C. The District Court Proceedings
Baker’s pro se petition for writ of habe-as corpus made in the federal district court was referred to a magistrate judge who recommended denial without an evidentia-ry hearing and denial of a certificate of appealability. Baker objected to the recommendation that his ineffective assistance of counsel claim be denied, arguing that the PCRA Court unreasonably applied Strickland to his case and unreasonably determined that Greenberg had investigated the Thrones sisters as potential witnesses. The District Court held that “[a] reasonable fact-finder, discounting the Thrones’s testimony, could find that [Greenberg] acted in accordance with his normal practice of investigating all known witnesses,” that Greenberg’s decision not to put on unreliable alibi witnesses was objectively reasonable, and that the record supported the PCRA Court’s holding that Baker could not show prejudice. App. at 16. The District Court overruled Baker’s objections, denied the writ, and declined to issue a certificate of appealability.
This court granted Baker’s motion for a certificate of appealability on the following issue: “whether appellant’s trial attorney was ineffective for failing to investigate or call Takena and Nakia Thrones as witnesses.”
II.
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 2241 and 2254 and this court has jurisdiction under 28 U.S.C. §§ 1291 and 2258. Our review of the District Court’s denial of habeas relief is plenary. Jacobs v. Horn, 395 F.3d 92, 99 (3d Cir.2005). Under 28 U.S.C. § 2254(d), as amended, Baker’s petition cannot be granted unless the state court proceedings “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” The clearly established Federal law here is the Strickland standard for ineffective assistance of counsel under which Baker must show “(1) that counsel’s representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s error, the result would have been different.” Rolan v. Vaughn, 445 F.3d 671, 681 (3d Cir.2006) (quotation omitted). Factual determinations made in the state proceedings are “presumed to be correct,” a presumption that Baker must rebut by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
“[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052. In light of the evidence provided at the PCRA hearing, the PCRA Court’s holding that Greenberg was reasonable in choosing to attack the exploitable weaknesses in the Commonwealth’s ease, including the initial false identifications given by Cooper and Scott, rather than present incredible alibi witnesses was a reasonable application of federal law.
Even assuming that Greenberg failed to interview the Thrones sisters, “strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052. Greenberg interviewed Cody and found that his story did not match with Baker’s. Greenberg then asked Baker to comment on the differences. Baker does not claim to have done so. “[T]he *844degree of investigation that is reasonable depends in large part on the information provided by the defendant.” Stevens v. Del. Corr. Center, 295 F.3d 361, 371-72 (3d Cir.2002). “[A] particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments,” Strickland, 466 U.S. at 691, 104 S.Ct. 2052, and “viewed ... from the attorney’s perspective at the time,” Duncan v. Morton, 256 F.3d 189, 200 (3d Cir.2001) (quotation omitted).
After review of the record and the arguments of counsel, we cannot conclude that the District Court erred in holding that the state court reasonably applied the Strickland standard in denying Baker’s petition for a writ of habeas corpus.
III.
For the above-stated reasons, we will affirm the District Court’s denial of the writ. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471896/ | *845OPINION
PER CURIAM.
Chad Hatten appeals from the District Court’s order denying for lack of subject matter jurisdiction his habeas petition pursuant to 28 U.S.C. § 2241. The Government has moved for summary affirmance. Because we agree that Hatten cannot challenge his federal identity theft conviction with a § 2241 petition, and that he instead must do so pursuant to 28 U.S.C. §§ 2244 and 2255, we will grant the Government’s motion and affirm the order of the District Court.
I.
Hatten is currently serving a ninety-month sentence based on his convictions in the United States District Court for the Southern District of Texas for Fraud in Connection with Access Devices, Access Device Fraud, and Aggravated Identity Theft. In July 2007, Hatten filed a § 2255 motion, which was denied on the merits. His request for a certificate of appealability (“COA”) was also denied. See United States v. Hatten, No. 08-20487 (5th Cir. June 22, 2009).
While his COA request was pending in the Fifth Circuit, Hatten filed the § 2241 petition at issue. Therein, Hatten claimed “actual innocence” of Aggravated Identity Theft and argued that his sentence for that crime has resulted in an Ex Post Facto Clause violation. Given that Hatten was being confined in FCI-McKean at the time, the § 2241 petition was transferred from the Southern District of Texas to the United States District Court for the Western District of Pennsylvania. See Hatten v. United States of America, No. 07-cv-02927, dkt #4 (S.D.Tx. Nov. 23, 2007).
After the transfer, Hatten moved for summary judgment on his § 2241 petition. The Magistrate Judge concluded that since Hatten’s “claims challenge the imposition of his sentence, rather than the execution of his sentence, a habeas corpus petition filed under § 2241 is not the appropriate vehicle.” The Magistrate Judge also concluded that Hatten was not entitled to “the benefit of § 2255’s savings clause.” The District Court adopted the Magistrate Judge’s report and recommendation, denied Hatten’s motion for summary judgment, and dismissed his habeas petition for lack of subject matter jurisdiction. Hatten appealed.
II.
We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253(a). A COA is not required to appeal from the denial of Hatten’s § 2241 petition. See Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir.2009). We exercise plenary review over the District Court’s legal conclusions, and review its factual findings for clear error. See Ruggiano v. Reish, 307 F.3d 121, 126 (3d Cir.2002). Summary affirmance is proper when “it clearly appears that no substantial question is presented or that subsequent precedent or a change in circumstances warrants such action.” Third Circuit I.O.P. 10.6.
III.
The presumptive means by which a federal prisoner can challenge the validity of his conviction or sentence is by motion pursuant to 28 U.S.C. § 2255, unless such a motion would be “inadequate or ineffective.” Okereke v. United States, 307 F.3d 117, 120 (3d Cir.2002). Lack of success in a previous § 2255 motion, without more, does not render § 2255 inadequate or ineffective; nor do AEDPA’s restrictions on filing successive § 2255 motions. See Cradle v. United States ex rel. Miner, 290 F.3d 536, 539 (3d Cir.2002). We agree with the Government that Hatten’s case does not fit within the narrow class of *846circumstances where a § 2255 motion would in fact be inadequate or ineffective to challenge a conviction, and that the District Court properly dismissed Hatten’s § 2241 petition for lack of subject matter jurisdiction.
Therefore, because no “substantial question” is presented by this appeal, we grant the Government’s motion for summary af-firmance and will affirm the judgment of the District Court. For Hatten’s benefit, we note that should he choose to file a subsequent § 2255 motion, he must obtain authorization to do so in accordance with the procedures outlined in 28 U.S.C. §§ 2244 and 2255. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471900/ | OPINION OF THE COURT
PER CURIAM.
Cazim Mrkulic, his wife Enisa, and his son, Alis, petition for review of an order of the Board of Immigration Appeals (BIA). For the reasons below, we will deny the petition for review.
The Mrkulics are natives of Yugoslavia and citizens of Bosnia-Herzegovina who entered the United States in March 2004. In February 2005, Cazim Mrkulic filed an application for asylum. He argued that he would be persecuted in Bosnia-Herzegovina based on his Muslim religion and his Montenegrin nationality. The Mrkulics were subsequently charged as removable for overstaying their admission periods. They conceded removability and sought asylum, withholding of removal, and relief under the Convention Against Torture (CAT).
At a hearing before an Immigration Judge (IJ), Cazim Mrkulic testified that, ever since the Balkan War began in 1992, he had been threatened and harassed by neighbors based on his Montenegrin accent. He stated that in January 2003 he was attacked by four men and stabbed in the abdomen with a knife. He stated that they called him a Montenegrin and said “why don’t you leave our land.” He later woke up in the hospital and was told by a doctor that he was lucky to be alive. He related that when he reported the attack to the police, he received no help.
Cazim stated that his son was attacked in December 2003. Alis was beaten and called a dirty dog from Montenegro. Ca-zim did not report his son’s beating to the police because the police had done nothing when he was attacked. Cazim testified that the family constantly had problems, including threatening phone calls, damage to their cars, slashed tires, and placement of garbage, even burning garbage, in front of their house. Enisa and Alis gave testimony which was consistent with Cazim’s.
The IJ denied relief and ordered the Mrkulics removed to Bosnia-Herzegovina. The IJ concluded that there was no evidence of a pattern or practice of persecution of Montenegrins in Bosnia-Herzegovina. The IJ noted that petitioners had not corroborated their testimony of the attack *850on Cazim with any independent evidence and concluded that they had not shown past persecution. The BIA adopted and affirmed the IJ’s decision. The BIA found no error in the IJ’s determination that the Mrkulics had not shown past persecution or a well-founded fear of future persecution. Assuming credibility, the BIA determined that the Mrkulics failed to carry them burden of proof because they did not provide corroborating evidence. The Mrkulics then filed a timely petition for review.
We have jurisdiction under 8 U.S.C. § 1252. We may reverse the BIA’s decision only if the record permits but one reasonable conclusion that is not the one reached by the Board. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). To establish eligibility for asylum, petitioners must demonstrate either past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. See Vente v. Gonzales, 415 F.3d 296, 300 (3d Cir.2005). For withholding of removal, they must demonstrate that it is more likely than not that they would suffer persecution in Bosnia-Herzegovina on account of these protected grounds. Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir.2003); 8 U.S.C. § 1231(b)(3)(A). To be eligible for withholding of removal under the Convention Against Torture, petitioners must demonstrate that it is more likely than not that they would be tortured if removed to Bosnia-Herzegovina. 8 C.F.R. § 208.16(c)(2).
First, Petitioners argue that the IJ failed to make a credibility determination. Assuming credibility, the BIA determined, however, that petitioners had failed to carry their burden of showing past persecution or a well-founded fear of future persecution. Next, the petitioners argue that the IJ failed to consider in the aggregate the physical attacks, threats, and mistreatment they suffered. We need not address the issue of whether the mistreatment alleged by petitioners rises to the level of persecution because the BIA concluded that petitioners had not provided sufficient corroborating evidence.
The petitioners argue that the IJ relied too heavily on the lack of corroboration and failed to evaluate Cazim’s reasons for failing to provide corroboration. The BIA agreed with the IJ that petitioners did not present sufficient corroborating evidence. We have held that the BIA may require credible applicants to provide corroborating evidence. See Abdulai v. Ashcroft, 239 F.3d 542 (3d Cir.2001). A corroboration analysis has three parts: “(1) an identification of the facts for which ‘it is reasonable to expect corroboration;’ (2) an inquiry as to whether the applicant has provided information corroborating the relevant facts; and, if he or she has not, (3) an analysis of whether the applicant has adequately explained his or her failure to do so.” Id. at 554 (citations omitted). We may not reverse the IJ’s finding with respect to the availability of corroborating evidence unless we find that a reasonable fact-finder would be compelled to conclude that such corroborating evidence is unavailable. 8 U.S.C. § 1252(b)(4); Sandie v. Attorney General, 562 F.3d 246, 252 (3d Cir.2009).
Cazim presented no medical records or police records related to the stabbing incident. He testified that he was never given any records. There was no evidence submitted to corroborate the beating of Alis. When the IJ asked the petitioners’ attorney if he wanted to ask Cazim any more questions about why he had no evidence from the hospital or police, the attorney declined. Thus, the IJ gave petitioners an opportunity to explain the absence of such evidence. C.A.R. at 179. While Cazim testified that he was not given any records, petitioners provided *851no evidence that such records were unavailable. While petitioners argue that the IJ made no finding as to the availability of the expected evidence, the IJ stated in her opinion, “[t]his Court finds that, with regard to the failure to present evidence of a police report or of a hospital admission or discharge in 2003, Respondents failed to provide evidence that is generally reasonable to expect of them.” App. at 87. The BIA concluded that it was reasonable for the IJ to expect such evidence. We believe that a reasonable fact-finder would not be compelled to disagree. Therefore, we will not disturb the BIA’s conclusion that petitioners failed to establish past persecution.
Petitioners also argue that they have a well-founded fear of persecution if removed to Bosnia-Herzegovina. The IJ found that there was no evidence presented of a pattern or practice of persecution against Montenegrins in Bosnia-Herzegovina. Petitioners point only to a few general statements from the 2005 Country Report on Bosnia-Herzegovina which indicate that ethnically motivated religious violence was directed against ethnic symbols, clerics, and buildings. Petitioners have not demonstrated that the record compels a finding of a well-founded fear of future persecution.1 Nor have they shown that the record compels a finding of likely persecution and torture in Bosnia-Herzegovina so as to entitle them to withholding of removal or relief under the CAT. Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir.2003); 8 C.F.R. § 208.16(c)(2).
For the above reasons, we will deny the petition for review.
. We note that petitioners' attorney agreed with the IJ that there was not a pattern or practice of persecution against Montenegrins in Bosnia-Herzegovina. C.A.R. at 176. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471903/ | OPINION
SMITH, Circuit Judge.
On February 6, 2008, Jose Rivera pleaded guilty to one count of conspiracy to distribute less than 100 grams of heroin, in violation of 21 U.S.C. § 846. Rivera’s Sentencing Guidelines range, which was based on his classification as a “Career Offender,” was 151 to 188 months. The District Court sentenced Rivera to 108 months of imprisonment, a special assessment of $100, and a three-year term of supervised release.1 Rivera argues that the District Court abused its discretion when it imposed the term of imprisonment because (1) it relied on erroneous facts regarding his prior criminal history, and (2) it failed to meaningfully consider the factors enumerated in 18 U.S.C. § 3553(a). We will affirm.2
First, Rivera argues that the District Court erred when it denied Rivera’s motion for a downward departure based “on his minor role in the offense ... and for over-representation of his criminal history ..., where such denial was based in large part on an erroneous reading of Rivera’s record.” Thus, it is clear that Rivera is not asserting that the District Court incorrectly calculated his Sentencing Guidelines range, but rather that it relied on erroneous information when it refused to exercise its discretion to depart. However, in such cases, “our precedent ... mandates the conclusion that where a district court allegedly made a mistake of fact when, in the exercise of its discretion, it refused to grant a request for a downward departure, while aware of its authority to grant that request, we lack jurisdiction to *853review that decision.” United States v. Minutoli, 374 F.3d 236, 243 (3d Cir.2004); see also United States v. Cooper, 437 F.3d 324 (3d Cir.2006) (stating that this Court “declin[es] to review, after [United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) ], a district court’s decision to deny departure”).
In this case, the District Court stated that granting the motion for a downward departure “would violate, in my view, the spirit of the departure provision.... ” By declining to exercise its discretion in an effort to remain faithful to the “spirit” of the Sentencing Guidelines, rather than because it believed it was required to do so, the District Court demonstrated that it recognized its authority to depart. See id. at 240 n. 5, 125 S.Ct. 738 (noting that “district courts need not utter the magic words, ‘I recognize I have authority to grant the downward departure,’ ” though “encouraging] them to do so”). We therefore lack jurisdiction to review the District Court’s discretionary decision to deny Rivera’s request for a downward departure.
Second, Rivera contends that his sentence is unreasonable because various § 3553(a) factors warranted a reduced sentence. This Court reviews a district court’s sentence for procedural and substantive reasonableness. United States v. Levinson, 543 F.3d 190, 195 (3d Cir.2008). In doing so, we apply the “abuse of discretion” standard. United States v. Wise, 515 F.3d 207, 217-18 (3d Cir.2008). In United States v. Cooper, this Court stated that “a rote statement of the § 3553(a) factors should not suffice if at sentencing either the defendant or the prosecution properly raises ‘a ground of recognized legal merit.’ ” 437 F.3d at 329 (citation omitted). Nonetheless, the “court need not discuss every argument made by a litigant,” nor must it “discuss and make findings as to each of the § 3553(a) factors.” Id. Applying a deferential standard of review, this Court instead looks to whether the § 3553(a) factors “were reasonably applied to the circumstances of the case” and whether “the district judge imposed the sentence ... for reasons that are logical and consistent with the factors set forth in section 3553(a).” Id.
Before the District Court, Rivera argued that several Section 3553(a) factors warranted a below-guidelines sentence, including: (1) the need to avoid unwarranted sentencing disparities; (2) the low rate of recidivism for non-violent offenders classified as Career Offenders; (3) his age; (4) and his drug addiction. The record in this case demonstrates that the District Court sufficiently considered these issues. With regard to Rivera’s age, it noted that this factor should prompt “a desire to change,” but stated its dismay at “why that didn’t hit [Rivera] a couple of years ago.” Similarly, the Court discounted Rivera’s recidivism argument, questioning how Rivera could spend time in prison at a young age for a drug offense and subsequently serve as, essentially, a mule for drug traffickers. Finally, the District Court expressly stated that sentencing disparities “really compelled] [it] to look at a variance.” In fact, it granted a variance that balanced the nature of the crime against the lower sentences received by others involved in the conspiracy. Because the District Court sufficiently considered the issues raised by Rivera, we believe that the District Court’s imposition of a 108-month term of imprisonment was not procedurally unreasonable.
Furthermore, Rivera’s term of imprisonment was not substantively unreasonable. “[I]f the district court’s sentence is procedurally sound, we will affirm it unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” United *854States v. Tomko, 562 F.3d 558, 568 (3d Cir.2009) (en banc). In this case, the District Court concluded that a 108-month term of imprisonment was reasonable, and we agree.
For the reasons stated above, we will affirm the District Court’s decision.
. As we write for the benefit of the parties alone, who are familiar with the facts and procedural history of this case, we confine our discussion to the legal issues presented and include only those facts necessary to our disposition
. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471904/ | OPINION
SLOVITER, Circuit Judge.
Timothy Johnson challenges the District Court’s denial of his motion to withdraw his guilty plea. We will affirm.
I.
Johnson was a leader in the “Sex, Money, Murder” subgroup of the “Bloods” street gang, which engaged in drug distribution in Williamsport, Pennsylvania. Between 2008 and August 2005, members of the gang brought 50 to 200 bricks of heroin from Newark, New Jersey, to Williamsport for distribution. According to the Presentence Report (“PSR”), on three occasions Johnson received a call for the purchase of heroin and Baldwin delivered the heroin to a confidential informant. “Johnson contends that his involvement was limited to permitting Baldwin to borrow his cell phone.” Appellant’s Br. at 7.
A federal grand jury in Williamsport returned a 14-count indictment naming Johnson and nine co-conspirators. Johnson was indicted on one count of illegal membership in a street gang in violation of 18 U.S.C. § 521, one count of conspiracy to distribute, and possess with intent to distribute, more than five grams of cocaine base, heroin, eestacy, cocaine, and marijuana within 1,000 feet of a school in violation of 21 U.S.C. § 846, and three counts of distribution and possession with intent to distribute heroin within 1,000 feet of a school in violation of 21 U.S.C. §§ 841(a)(1) and 860, and 18 U.S.C. § 2. Subsequently, the U.S. Attorney for the Middle District of Pennsylvania filed a Superceding Information against Johnson, charging a single count of conspiracy “to possess with intent to distribute and to distribute [heroin] ... in violation of 21 U.S.C. § 841(a)(1).” App. at 20.
Thereafter, Johnson entered into a written plea agreement in which he agreed to plead guilty to the one-count information in exchange for the dismissal of the five counts against him from the earlier indictment. The plea agreement expressly provided that Johnson’s maximum possible sentence of incarceration was 20 years.
When Johnson entered his guilty plea before the District Court, the prosecutor explained to him the terms of the plea agreement, and Johnson acknowledged, under oath, that he had read the plea agreement, that he had discussed it with his counsel, and that he had not been threatened or coerced into signing it.
The Court explained the elements of conspiracy and Johnson acknowledged that he understood this explanation. In addition, the prosecutor described Johnson’s role in the conspiracy, stating that Johnson “provided the telephone on [three] oecasion[s] that was used to make the phone call [to set up the controlled sales of heroin] and that [Johnson] knew that when he was providing the phone there was going to be a transaction involving the sale of heroin,” and that the conspiracy involved between 100 and 400 grams of heroin. App. at 105. Johnson acknowledged that he agreed with that characterization.
Although the prosecution did not yet have Johnson’s complete criminal history, the prosecutor stated that “[h]e could very well be a career criminal ..., which would *856... [make his range under the U.S. Sentencing Guidelines Manual (“USSG” or “Guidelines”) ] 151 to 188 months.” App. at 100-01. On four separate occasions during his plea colloquy, Johnson was informed that the maximum penalty he faced was 20 years incarceration. Moreover, each of the three times he was asked if he understood that he could be sentenced to up to 20 years, he acknowledged that he did.
After Johnson entered his guilty plea, the Probation Office prepared an initial PSR and later submitted a revised version. The revised PSR calculated a total offense level of 32 and a criminal history of VI because Johnson was found to be a career offender.1 Given these calculations, as well as the statutory maximum sentence of 20 years under 21 U.S.C. §§ 841(b)(1)(C) and 846, Johnson’s Guidelines range was 210 to 240 months imprisonment.
Shortly thereafter, Johnson filed a motion to withdraw his guilty plea, arguing that his Guidelines range was “unfair and unjust in light of the [lesser] sentences imposed upon his co-defendants.” App. at 50.2 The District Court denied this motion, and sentenced Johnson to 140 months incarceration (almost six years below the Guidelines’ minimum of 210 months).3
II.
Johnson challenges the District Court’s denial of his motion to withdraw his guilty plea on the basis that (1) his plea was not knowing, intelligent, and voluntary because he did not understand its consequences until he reviewed the PSR and (2) that the consequences of his plea were “unfair and unjust in light of the [lesser] sentences imposed upon his co-defendants.” Appellant’s Br. at 13. We reject both arguments.
Johnson argues that his plea was not knowing, intelligent, and voluntary because he did not “fully understand[ ] the consequences or elements of the charge to which he pleaded guilty.” Appellant’s Br. at 11. We review this argument for plain error because he did not raise it before the District Court. See United States v. Knobloch, 131 F.3d 366, 370 (3d Cir.1997).
Both the prosecutor and the District Court explained to Johnson the consequences of his guilty plea. As noted above, Johnson acknowledged that he was involved in the drug conspiracy, that he had read the plea agreement and understood its terms, that he had discussed it with counsel, that he was not threatened or coerced into signing it, and that he understood his maximum potential prison sentence to be 20 years.
Indeed, Johnson was informed four times during his plea colloquy that he faced up to 20 years in prison. First, the prosecutor advised him of that possibility and Johnson acknowledged that he under*857stood. Later, the prosecutor repeated the statutory maximum and the District Court asked Johnson if he understood it, “[p]ar-ticularly the 20 years incarceration?” App. at 93. Johnson acknowledged that he did. Then, for a fourth time, the District Court advised Johnson that his statutory maximum was 20 years and Johnson acknowledged that he understood.
Thus, “[t]he record concerning [Johnson’s] plea colloquy demonstrates that [he] had an adequate understanding of the charges to which [he] was pleading guilty,” United States v. Tannis, 942 F.2d 196, 197 (3d Cir.1991), and of the fact that he faced as much as 20 years in prison, see Parry v. Rosemeyer, 64 F.3d 110, 114 (3d Cir.1995) (“A plea of guilty will not be found to be unknowing and involuntary in the absence of proof that the defendant was not advised of, or did not understand, the direct consequences of his plea.”), superceded by statute on other grounds as recognized in Dickerson v. Vaughn, 90 F.3d 87 (3d Cir.1996).
Johnson also argues that the District Court erred in denying his motion to withdraw his guilty plea because his co-defendants were permitted to plead to lesser offenses and were sentenced to shorter terms of imprisonment. We reverse a district court’s denial of a motion to withdraw a guilty plea only if the denial was an abuse of discretion. See United States v. Brown, 250 F.3d 811, 815 (3d Cir.2001). Further, “[w]e look to three factors to evaluate a motion to withdraw: (1) whether the defendant asserts [his] innocence; (2) whether the government would be prejudiced by the withdrawal; and (3) the strength of the defendant’s reason to withdraw the plea.” Id. The District Court concluded that Johnson failed to meet the first and third prongs of this test and that it need not determine, under the second prong, whether the government would suffer prejudice. We agree.
As to the first prong, at no point has Johnson asserted his innocence. When he entered his guilty plea, he acknowledged, under oath, that he was involved in a conspiracy to distribute 100 to 400 grams of heroin. With respect to the third factor, the strength of his reasons to withdraw his plea are inadequate. As the District Court observed, “[Johnson’s] sole reason for withdrawing his plea appears to be that he is unhappy with the guideline range set out in the PSR.” App. at 5-6. However, we have held that a “simple shift in defense tactics, a change of mind, or the fear of punishment are not adequate reasons to force the government to incur the expense, difficulty and risk of trying a defendant, who has already acknowledged his guilt before the court.” United States v. Jones, 979 F.2d 317, 318 (3d Cir.1992), superceded by statute as recognized by United States v. Roberson, 194 F.3d 408, 417 (3d Cir.1999).
III.
For the above-stated reasons, we will affirm the denial of Johnson’s motion to withdraw his guilty plea.
. Johnson was sentenced pursuant to the 2006 version of the USSG. He was characterized as a career offender because (1) he was at least eighteen when he committed the instant offense, (2) the instant offense was a felony conviction for a controlled substance offense, and (3) he had at least two prior felony convictions for controlled substance offenses. See USSG § 4B1.I.
. After the submission of the initial PSR, but before the submission of the revised version, Johnson sent a letter to the District Court requesting that "his counsel be replaced and his plea 'pulled back.'" United States v. Johnson, No. 4:05-CR-211, at 1 (Jan. 9, 2007). Johnson's counsel acknowledged that the "attorney-client relationship [wa]s irretrievably broken, and request[ed] that he be permitted to withdraw his appearance as Johnson's counsel.” Id. at 2. The District Court appointed Johnson new counsel and denied without prejudice his pro se motion to withdraw his guilty plea.
.The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 and we have jurisdiction pursuant to 28 U.S.C. § 1291. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471906/ | OPINION
PER CURIAM.
Donald Earl, pro se, appeals from the District Court’s order denying his motion *859to intervene and his Rule 60(b) motion to vacate. For the reasons that follow, we shall affirm the District Court’s order.
This case relates to a civil class action products liability lawsuit filed in the District of New Jersey, and currently on appeal. See In Re: Pet Food Products Liability Litigation, D.N.J. Civ. No. 07-cv-02867; C.A. No. 08-4741 & 08-4779. That suit arose out of a March 2007 recall of pet food products that allegedly contained contaminated wheat gluten and/or rice protein concentrate obtained from China. Plaintiffs filed more than one hundred lawsuits against several defendants, including Menu Foods, one of the manufacturers of the recalled pet food products.
As a part of discovery, Menu Foods and several other defendants stored large quantities of various recalled food products. Those products were divided into three categories: 1) cases of pet food subject to the recall (“organized inventory”); 2) thousands of pounds of unprocessed, perishable raw wheat gluten; and 3) cases containing recalled and unrecalled pet food, pet food made by other companies, and other items (“unorganized inventory”). The defendants sought an order from the District Court permitting them to limit the amount of material they had to store. On December 18, 2007, the District Court entered an order granting the defendants’ motion, which allowed them to retain a statistically significant representative sampling of the organized inventory and to dispose of the remaining recalled pet food, the raw wheat gluten and the unorganized inventory.1 None of the plaintiffs in the class objected to the Court’s order.
Meanwhile, in Washington State, Appellant Donald Earl had initiated a separate lawsuit alleging that his cat had died after consuming pet food manufactured by Menu Foods and sold by The Kroger Company, a grocery store.2 Menu Foods notified Earl of the New Jersey District Court’s order permitting the disposal of the unorganized inventory. Earl filed an objection in the District Court, arguing that the unorganized inventory was material to his case and should not be destroyed. The District Court denied his objection. Menu Foods then filed a motion in the Superior Court of Washington for permission to dispose of the unorganized inventory as it related to Earl’s case, which the court granted. Earl attempted to reverse the preservation order, but was denied by the Washington state courts.3 Menu Foods completed its disposal of the unorganized inventory in June 2008.
Earl then returned to the New Jersey District Court, where in January 2009, he filed a Rule 60(b) motion to vacate the District Court’s order disposing of the unorganized materials, and a motion to intervene as a matter of right in the class action. However, Earl filed his motions nearly two months after the District Court entered a final judgment in the underlying Pet Food Recall Litigation and after the *860case was on appeal. The District Court denied his motions, finding that he did not demonstrate a sufficient interest in the unorganized inventory. It also denied his motion for reconsideration. Earl filed a timely notice of appeal.
This Court reviews the denial of a motion to intervene under Fed.R.Civ.P. 24(a)(2) for an abuse of discretion and should reverse only if the District Court “has applied an improper legal standard or reached a decision [the Court is] confident is incorrect.” United States v. Alcan Aluminum, Inc., 25 F.3d 1174, 1179 (3d Cir.1994); see also Liberty Mut. Ins. Co. v. Treesdale, Inc., 419 F.3d 216, 220 n. 4 (3d Cir.2005). A litigant seeking intervention as a matter of right under Fed.R.Civ.P. 24(a)(2) must establish: “1) a timely application for leave to intervene, 2) a sufficient interest in the underlying litigation, 3) a threat that the interest will be impaired or affected by the disposition of the underlying action, and 4) that the existing parties to the action do not adequately represent the prospective intervenor’s interests.” Treesdale, 419 F.3d at 220 (citing Kleissler v. United States Forest Serv., 157 F.3d 964, 969 (3d Cir.1998)). Each of these requirements “must be met to intervene as of right.” Mountain Top Condo. Ass’n v. Dave Stabbert Master Builder, Inc., 72 F.3d 361, 366 (3d Cir.1995) (citation omitted).
The District Court denied the motion to intervene on the ground that Earl’s interest was insufficient to warrant intervention stating that Earl had not “demonstrated that he has an interest in the ‘unorganized inventory’ requiring that this Court vacate its prior orders regarding that inventory.” It then denied his motion to vacate. We agree with the District Court that Earl did not show an interest in the unorganized inventory, as described below, but will also affirm on the basis that Earl’s motion to intervene was not timely filed. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir.1999) (stating that the Court may affirm an order on any ground that is supported by the record).
Here, Earl filed his motions to intervene and vacate nearly two months after the District Court had entered a final judgment in the underlying Pet Food Recall Litigation, and beyond the thirty-day statutory time period for filing an appeal. See Fed. R.App. P. 4(a). He did not file his motion to intervene for purposes of appealing the District Court’s final judgment, but for purposes of vacating an order that had no effect on the outcome of the underlying lawsuit. See Halderman v. Pennhurst State Sch. & Hosp., 612 F.2d 131, 134 (3d Cir.1979) (“Certainly, an effort to intervene after a judgment has become final ... presents an extreme example of untimeliness .... Where the purpose of a motion to intervene is to obtain appellate review of a district court order determining the status of a class, the motion may be considered timely if filed within the time limit for filing a notice of appeal.”) (citing United Airlines, Inc., v. McDonald, 432 U.S. 385, 392, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977)). As a result, Earl’s motion to intervene was untimely.
We also agree with the District Court that Earl did not demonstrate a sufficient interest in the litigation to warrant intervention. The purpose of his motion to intervene was to obtain an order vacating the District Court’s December 18, 2007 order authorizing the destruction of the unorganized inventory. None of the plaintiffs objected to that order and Menu Foods destroyed the inventory in June 2008, nearly nine months before Earl filed his motion to intervene to prevent its destruction. As a result, he had no sufficient interest in the underlying litigation. Since Earl could not intervene, he was not a party to the lawsuit and the District Court *861had no choice but to deny his Rule 60(b) motion.4 Moreover, even if the District Court could have granted his Rule 60(b) motion, to do so would have been meaningless once the unorganized inventory had been destroyed.
In conclusion, we agree that the District Court correctly denied Earl’s motions to intervene and to vacate. Costs will be assessed to the appellant. See Fed. R.App. P. 39(a)(2); LAR 39.5
. Defendants argued this was done so as to limit the significant costs of storing the materials and to dispose of materials that had become a public health hazard.
. At no point has Earl ever been a party to the class action lawsuit in the Pet Food Recall litigation. Furthermore, the pet food in Earl’s case was manufactured and sold before the period subject to the recall, although it is unclear from the record exactly how long before the recall.
.The Supreme Court of Washington found that the Superior Court had not abused its discretion in entering the disposal order. Earl, it held, had his own samples of the cat food from the relevant era, and had not shown “that his plan to retrieve 500 samples from the unorganized inventory, without any methodology establishing how these samples would be representative, would lead to admissible evidence.”
. In his brief, Earl also argues that: 1) Menu Foods attorneys violated the Rules of Professional Conduct by filing a motion to destroy evidence; and 2) that the District Court did not have subject matter jurisdiction or legal authority to grant a motion to destroy evidence. We will not consider these arguments in light of our holding that the District Court properly denied his motions to intervene and vacate.
. We also grant the Appellee’s motion to take judicial notice of the opinions filed by the courts of Washington state concerning Earl’s attempts to prevent the destruction of the evidence. We also grant appellee’s and appellant's motions to file supplemental appendices. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471908/ | OPINION
PER CURIAM.
Dylan Stephen Jayne, proceeding pro se, appeals from the District Court’s order dismissing his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). For the reasons that follow, we will affirm in part and vacate in part the District Court’s order.
On June 21, 2007, Jayne filed a complaint in the United States District Court for the Middle District of Pennsylvania alleging several misdeeds by the Pike County Correctional Facility and several of its employees. The complaint, while lengthy, lacks the structure necessary to assess the exact claims that Jayne attempts to advance. The District Court, however, evaluated the complaint liberally to include several types of claims, including: (1) challenges to his state court prosecution and conviction; (2) allegations that his First Amendment right to meaningful access to the court was violated; (3) allegations that the defendants violated his Eighth Amendment rights by acting with deliberate indifference to his medical needs; and (4) allegations that his prison placement and custodial classification were improper. The District Court granted Jayne’s motion to proceed in forma pau-peris and then determined that all of his claims had fatal defects that warranted sua sponte dismissal.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District Court’s sua sponte dismissal of a complaint pursuant to 28 U.S.C. § 1915(e)(2) is plenary. Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.2000). If a complaint is vulnerable to dismissal, a district court must first permit the plaintiff to file a curative amendment even if the plaintiff does not seek leave to amend. Alston v. Parker, 363 F.3d 229, 235 (3d Cir.2004). Dismissal without leave to amend is justified only on grounds of bad faith, undue delay, prejudice, or futility. Id. at 235-36.
To the extent that Jayne seeks to challenge his underlying state prosecution and conviction, the District Court properly found that he could only bring such claims in a 28 U.S.C. § 2254 petition for habeas corpus. The District Court, however, erred in dismissing the remaining claims without providing Jayne with an opportunity to amend his complaint. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.2002). There is no doubt that, in its current form, Jayne’s complaint is wholly inadequate. Nevertheless, given the opportunity to amend, he may be able to properly set forth claims pursuant to 42 U.S.C. § 1983 alleging that his Eighth Amendment rights were violated due to the deliberate indifference to a serious *863medical need, see Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), and/or that his custodial classification presented an atypical hardship as is required to establish a constitutional violation under Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Further, the district court dismissed Jayne’s claims of denial of access to the courts as time-barred. See Kost v. Kozakiewicz, 1 F.3d 176, 189-90 (3d Cir.1993); 42 Pa. Cons.Stat. Ann. § 5524. While it appears that some of the complained-of actions occurred outside the limitation period, we cannot say, at this stage, that the facts alleged in the complaint plainly demonstrate that a cause of action is barred by the statute of limitation. See Pino v. Ryan, 49 F.3d 51, 53 (2d Cir.1995) (holding that sua sponte dismissal of a complaint is proper only if it appears on the face of the complaint that it is barred by the applicable statute of limitations). Accordingly, because of the dearth of information regarding Jayne’s claims, we cannot conclude that amendment of his complaint will be futile. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir.2007) (observing that, in civil rights cases, “leave to amend must be granted sua sponte before dismissing” the complaint).
Accordingly, we will affirm in part, vacate in part, and remand the matter for further proceedings consistent with this opinion. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471910/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ronald Salyer appeals from the tax court’s orders denying, based on lack of jurisdiction, his Motion to Restrain Assessment or Collection, and 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. See Salyer v. Comm’r, IRS, Tax Ct. No. 08L-14638 (U.S.T.C. Jan. 13, 2009 & entered Mar. 5, 2009; filed Mar. 6, 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/8471913/ | *870Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas Wane Marett appeals from the tax court’s orders imposing sanctions, upholding the Commissioner’s proposed collection activities with respect to his tax liability for the 2000 tax year, 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 tax court. See Marett v. Comm’r, IRS, Tax Ct. No. 06-4048, 2009 WL 151487 (U.S.T.C. Jan 22, 2009); (entered Feb. 25 & filed Feb. 26, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471914/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Stanley A. Cook appeals from the tax court’s orders upholding the Commissioner’s deficiency determination as to Cook’s income tax liability for the 2003 tax year, 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 tax court. See Cook v. Comm’r, IRS, Tax Ct. No. 06-24547, 2008 WL 2917635 (U.S.T.C. July 30, 2008); (Nov. 18, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471875/ | OPINION
PER CURIAM.
Hector Huertas, proceeding pro se, has filed a petition for a writ of mandamus challenging the procedure of the United States District Court for the District of New Jersey for issuing subpoenas. We will deny the mandamus petition.
Huertas is the plaintiff in five civil actions pending in District Court. Huertas states that he sought subpoenas in connection with these lawsuits and that the Clerk’s Office required that he complete the captions on the forms before the court would issue the subpoenas. Huertas asserts that, under Federal Rule of Civil Procedure 45(a)(3), the Clerk’s Office should have issued the subpoenas in blank form. Huertas contends that the District Court’s internal procedure results in the unnecessary delay of discovery. He asks this Court to set aside the procedure.
The writ of mandamus traditionally has been used to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so. In re Patenaude, 210 F.3d 135, 140 (3d Cir.2000) (citations omitted). The writ is a drastic remedy that is seldom issued and its use is discouraged. Id. A petitioner must show that he has no other adequate means to attain the desired relief and that the right to a writ is clear and indisputable. Id. at 141.
Applying these standards, Huertas is not entitled to mandamus relief. Huertas has not sought any relief in the District Court based on that Court’s alleged internal procedures.1 Because Huertas has other means to attain the desired relief, mandamus relief is unwarranted. See id. (stating that where there are practical avenues for seeking relief that are untried, a mandamus petition will ordinarily be denied).
Accordingly, we will deny the petition for a writ of mandamus.
. The District Court dockets for the five cases in which Huertas seeks subpoenas reflect that on July 7 and 8, 2009, he filed requests to the Clerk to issue signed subpoenas. He has not moved the District Court for any relief in connection with these requests. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471877/ | OPINION
PER CURIAM.
Juan Wiggins appeals pro se from an order of the District Court dismissing his complaint. We will affirm.
I.
In 2000, Wiggins filed suit under 42 U.S.C. § 1983 against William F. Logan, an Atlantic City police officer, and his canine partner, K-9 Agent “Deuce.” (D.N.J.Civ. No. 00-cv-05281.) Wiggins alleged that Logan ordered Deuce to bite him during an arrest even though he had surrendered. The District Court granted Wiggins’s motion for leave to proceed in forma pauperis and directed the United States Marshal to serve the summons and complaint. See 28 U.S.C. § 1915(d). The copy of Logan’s summons delivered to the United States Marshal bore the last name “Hogan” instead of “Logan,” a mistake that Wiggins attributes to “a district court clerk.” When the Marshal attempted to serve the complaint at the Atlantic City Police Department, he apparently was told that there was no one there by the name of “Hogan,” and he filed returns of service unexecuted on January 2, 2001.
Wiggins took no further action and, eight months later, the District Court dismissed the action without prejudice under Rules 4(m) and 41(b) for failure to effect service. Wiggins appealed. On June 4, 2002, we dismissed his appeal for failure to prosecute, and we later denied his subsequent motion to reopen (thus, we did not, as the District Court later wrote and as Logan states in his brief, “affirm”). (C.A. No. 02-1985.)1
*813Wiggins was incarcerated when he filed his complaint in 2000, but he was released in November 2002. In December 2006, he filed the complaint at issue here. Wiggins again named Logan and Deuce as defendants, and repeated his allegations that Logan had ordered Deuce to bite him. The only claim he asserted, however, was one that Logan had fraudulently refused to accept service of the 2000 complaint and thereby denied him access to the courts in violation of the Fourteenth Amendment. Wiggins asserts in his complaint that Logan refused service by “den[ying] ever working at the dog training facility” and by having “individuals give[] false information to the courts” about “defendantsP] whereabouts.” He also alleges that, in April 2005, he happened upon a newspaper article with a picture of an officer he recognized. When he asked someone to read the article to him, he “discovered” that the officer was Logan and that Logan worked with Deuce. (Wiggins does not allege the significance of this discovery, but it apparently confirmed for him that Logan and Deuce were indeed the officer and dog he had intended to sue and the Marshal had attempted to serve.)
This time, the Marshal was able to serve the complaint, and Logan filed an answer. Logan later filed a motion to dismiss, purportedly under Rule 12(b)(6), which is how the District Court treated it.2 The District Court granted the motion by order entered June 25, 2008. The District Court construed Wiggins’s complaint to reassert a claim based on the 2000 dog bite incident and to assert an additional claim based on Logan’s alleged refusal to accept service. The District Court dismissed the dog bite claim under the statute of limitations. It also concluded that Logan’s alleged refusal to accept service did not state a federal claim. Instead, it concluded that the claim arose under state law, and it declined to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c)(3). Wiggins filed a notice of appeal. The District Court later entered an order on July 15, 2008, clarifying that it was also dismissing Wiggins’s claims against Deuce and any “John Doe” defendants. Wiggins then filed a “motion for certificate of probable cause” expressing his intention to appeal that order as well.3
II.
The only argument that Wiggins raises on appeal is that the District Court erred in applying the statute of limitations because it assumed that he was asserting his original claim based on the 2000 dog bite incident. Wiggins insists instead that the only claim he intended to assert was a Fourteenth Amendment claim based on Logan’s allegedly-fraudulent refusal to accept service of his original complaint. Thus, even if the District Court properly construed Wiggins’s complaint to reassert his underlying dog bite claim, Wiggins has clearly abandoned it on appeal. Accordingly, we do not reach the issue of whether the District Court properly dismissed it under the statute of limitations.
*814That leaves Wiggins’s claim regarding Logan’s refusal to accept service. The District Court was properly troubled by these circumstances. As the District Court noted, the failure of the Atlantic City Police Department to accept service of the 2000 complaint may be “questionable” because the summons addressed to “Hogan” and identifying him as an officer in the K-9 unit, together with a separate summons addressed to K-9 office “Decue” [sic], likely should have alerted the Department that the summons for “Hogan” was intended for “Logan.” Moreover, Wiggins attributes the misspelling to the District Court, which was required to effect service, and his potentially-valid claim of excessive force was dismissed solely because the Marshal failed to do so. Thus, we share the District Court’s concerns.
The District Court concluded, however, that Wiggins’s allegations do not state a federal claim, and we agree. Wiggins claims that Logan deprived him of his right to access the courts, which he identifies as arising under the Fourteenth Amendment but which has been found to arise under other constitutional provisions as well. See Gibson v. Superintendent of N.J. Dep’t of Law and Pub. Safety, 411 F.3d 427, 441-42 (3d Cir.2005). Wiggins, however, has not been denied his right to access the courts. Wiggins was permitted to file his 2000 complaint informa pauper-is, and thus was already in court when the alleged denial of access occurred. Thus, any misconduct on Logan’s part might have warranted relief in the existing 2000 action, but it would not allow Wiggins to bring a separate action and assert an independent claim.
As we have explained, “[a] plaintiff typically cannot recover for any cover-ups or discovery abuses after an action has been filed inasmuch as the trial court can deal ■with such situations in the ongoing action .... Thus, only prefiling conduct that either prevents a plaintiff from filing suit or renders the plaintiffs access to the court ineffective or meaningless constitutes a constitutional violation.” Estate of Smith v. Marasco, 318 F.3d 497, 511 (3d Cir.2003) (emphasis added). See also Gibson, 411 F.3d at 441-42 (summarizing actionable right of access claims); Swekel v. City of River Rouge, 119 F.3d 1259, 1263 (6th Cir.1997) (“When the abuse transpires post-filing, the aggrieved party is already in court and that court usually can address the abuse, and thus, an access to courts claim typically will not be viable.”).
Wiggins has alleged no such conduct here. Instead, he alleges merely that Logan wrongfully interfered with service of process in some manner. As with other post-filing conduct, that alleged conduct could have been redressed if appropriate by the District Court in the 2000 action, even if Wiggins discovered it only after that action had been dismissed. See, e.g., Fed.R.Civ.P. 4(m) (allowing an extension of time to serve the complaint for “good cause”); Fed.R.Civ.P. 60(b) (allowing relief from a judgment on the grounds, inter alia, of mistake, newly-discovered evidence, or fraud). Wiggins also may have been able to obtain relief in his appeal from the dismissal of his 2000 action. See Welch, 925 F.2d at 669-70. See also Lindsey v. United States R.R. Retirement Bd., 101 F.3d 444, 446-47 & n. 4 (5th Cir.1996) (vacating dismissal of in forma pauperis complaint where failure to serve it was due to District Court’s oversight); Antonelli v. Sheahan, 81 F.3d 1422, 1426 (7th Cir.1996) (remanding for consideration of adequacy of Marshal’s attempt to serve in forma pauperis complaint). Wiggins, however, failed to prosecute that appeal, which led to its dismissal, so he forfeited any right to challenge the dismissal of his 2000 action.
Thus, we agree that Wiggins did not state a federal claim. The District Court *815went on to conclude that “the underlying facts of this claim sound in state law” and declined to exercise supplemental jurisdiction. The District Court did not discuss what claim these allegations might give rise to under state law, and we express no opinion on that issue. To the extent that they can be construed to assert a claim under state law, however, the District Court did not abuse its discretion in declining to exercise supplemental jurisdiction, which it did for the statutorily-authorized reason that it had dismissed all claims within its original jurisdiction. See 28 U.S.C. § 1367(c)(3); Figueroa, 188 F.3d at 181.
Accordingly, we will affirm.
. The dismissal without prejudice for failure to serve was a final order. See Welch v. Folsom, 925 F.2d 666, 668 (3d Cir.1991). On September 27, 2002, after we dismissed his appeal, Wiggins purported to file an amended complaint in the dismissed New Jersey action. The docket reflects no further activity in that case. Wiggins raises no issue regarding that amended complaint on appeal, but we note that the filing of the amended complaint did not cure the basis on which the District Court dismissed Wiggins's initial complaint (i.e., failure to serve).
. Logan could not file a motion under Rule 12(b)(6) because he already had answered Wiggins’s complaint. See Fed.R.Civ.P. 12(b). Thus, the District Court should have treated the motion as a motion for judgment on the pleadings under Rule 12(c). That error was harmless, however, because our disposition turns solely on an issue of law.
. We have jurisdiction under 28 U.S.C. § 1291. Our review of legal issues is plenary whether the District Court dismisses a complaint under Rule 12(b)(6), see Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.2008), or enters judgment under Rule 12(c), see Leamer v. Fauver, 288 F.3d 532, 535 (3d Cir.2002). We review decisions to decline to exercise supplemental jurisdiction for abuse of discretion. See Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172, 175 (3d Cir.1999). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471879/ | OPINION
PER CURIAM.
Appellant Nina Shahin, a pro se litigant, seeks review of the District Court’s Febru*816ary 26, 2009, 2009 WL 485168, Order granting Defendants’, the State of Delaware and the State of Delaware Department of Transportation (together “the State,”) motion to dismiss under Rule 37(b) of the Federal Rules of Civil Procedure. For the reasons set forth below, we will affirm.
I.
On July 20, 2007, Shahin filed a lawsuit alleging employment discrimination by reason of age. Shahin claimed that the State discriminated against her on the basis of her age when they failed to employ her as an Assistant Director of Financial Management. On February 20, 2008, the District Court issued discovery and scheduling orders to the parties, directing discovery to be completed by August 21, 2008, and summary judgment motions to be filed by October 21, 2008. Both before and after Shahin filed the action at issue here, she filed various other lawsuits in the District Court against the State of DelaT ware and several of its agencies. In an apparent effort to litigate all of the eases together, Shahin filed an untimely motion to consolidate on May 20, 2008.1
While Shahin’s motion to consolidate was pending, on June 10, 2008, the State served discovery requests upon Shahin. When Shahin did not timely respond to the discovery requests, the State corresponded with her on two occasions, July 22, 2008, and July 25, 2008. Shahin responded to the July 22, 2008 letter stating that she had several lawsuits pending, did not have the time or the money to respond to the discovery, and would wait for the District Court’s ruling on her motion to consolidate before providing discovery. She did not respond to the July 25, 2008 letter. The State then filed a motion to compel on August 19, 2008. Shahin did not respond to the motion. Finally, on October 22, 2008, the State, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, moved to dismiss the case as á result of Shahin’s failure to prosecute or comply with the District Court’s scheduling order. The District Court subsequently granted the State’s motion and dismissed Shahin’s. complaint with prejudice. A timely appeal followed.
II.
We review for abuse of discretion the District Court’s decision to dismiss the complaint as a sanction for failure to comply with discovery obligations. Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 538 (3d Cir.2007). “Although we have held that dismissal is a harsh remedy and should be resorted to only in extreme cases,” we have similarly recognized that “[district court judges, confronted with litigants who flagrantly violate or ignore court orders, often have no appropriate or efficacious recourse other than dismissal of the complaint with prejudice.” Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir.1992).
Rule 37(b)(2)(A) of the Federal Rules of Civil Procedure authorizes a district court to dismiss an action should a party fail to obey an order to provide or permit discovery. See Fed.R.Civ.P. 37(b)(2)(A). In assessing the propriety of such an action, we have stated that
we will be guided by the manner in which the trial court balanced the following factors, which have been enumerated in the earlier cases, and whether the record supports its findings: (1) the ex*817tent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense.
Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir.1984). As we have previously observed, the balancing of these factors is not a mechanical exercise; “not all of the Potáis factors need be satisfied in order to dismiss a complaint.” Mindek, 964 F.2d at 1373. On appeal, we afford the District Court’s decision “great deference” in view of the fact that, unlike us, the District Court has had direct contact with the litigants and is intimately familiar with the disruptions and difficulties caused by the behavior that led to the punitive dismissal. Id.
Given the District Court’s careful consideration and application of the Potáis factors, we cannot say that the District Court abused its discretion in dismissing Shahin’s case. First, any delay or failure to follow the District Court’s order was directly attributable to Shahin, as she was representing herself pro se. Second, the State has been prejudiced in its inability to adequately prepare for trial, by Shahin’s delay and her failure to comply -with the District Court’s orders. Third, the District Court noted that Shahin’s refusal to participate in discovery and to follow court orders has been ongoing. While the District Court did not make explicit findings as to whether Shahin’s conduct was willful or in bad faith, it did note, and we agree, that Shahin appears to rely upon her many pending lawsuits to excuse her from prosecuting this case.2 Lastly, and perhaps most importantly, Shahin’s claim does not appear meritorious. She alleges age discrimination pursuant to the Age Discrimination in Employment Act (“ADEA”). See 29 U.S.C. § 623. The defendants are the State of Delaware and its agency, the Department of Transportation. The Eleventh Amendment protects states and their agencies and departments from suit in federal court regardless of the kind of relief sought. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). The State has not waived its sovereign immunity under the Eleventh Amendment and Congress did not validly abrogate the States’ sovereign immunity to ADEA suits filed by private individuals. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000).3
Accordingly, we will affirm the judgment of the District Court.
. The scheduling order directed all motions to join parties and amend pleadings to be filed by April 21, 2008.
. Shahin’s argument that she was somehow authorized to delay responding to the State's discovery requests because her motion to consolidate was still pending is untenable. The record is void of any Court-ordered stay or request to stay the proceedings and Shahin provides no legal authority which might support her assumption.
. In her Reply Brief, Shahin argues that “by adopting Senate Bill No. 154 the Delaware Legislature waived that sovereign immunity right in cases of discrimination in employment (including age discrimination) and made that law a part of the Delaware Constitution (Title 19 Labor, Chapter 7 Employment Practices Subchapter II Discrimination in Employment.)” (See Reply Brief at 7) (internal quotations omitted) However, Shahin’s complaint does not allege that the State violated Delaware’s Discrimination in Employment Act ("DDEA”). See 19 Del. C. § 710. Furthermore, Delaware’s enactment of its own state law does not abrogate the State's sovereign immunity to ADEA suits filed by private individuals. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471881/ | OPINION
PER CURIAM.
James Void, a federal prisoner proceeding pro se, appeals from the order of the United States District Court for the District of New Jersey denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in which he challenged his prison disciplinary hearing and resulting sanctions. For the following reasons, we will affirm.
Void is currently confined in the Federal Correctional Institution at Fort Dix, New Jersey (FCI-Fort Dix). On July 11, 2007, Void was called to the Security Office to provide a urine sample for drug testing. He was given two hours to provide the urine sample. Void did not urinate until fifteen minutes past the two-hour deadline. The officer refused the urine sample and *819served Void with Incident Report No. 1618908, charging him with refusing to provide a urine sample in violation of Disciplinary Code Section 110. Void received a written notice of his rights on July 12, 2007. The incident report was referred to prison Disciplinary Hearing Officer Boyce (“DHO”), who held a hearing on July 17, 2007. At the hearing, Void confirmed that he understood his rights and he declined the assistance of a staff representative. He denied the charge, explaining that “I could not provide the sample with in two hours. I did give a sample fifteen minutes past the time limit, but they would not take it. I had a urine sample in October, 2006. I have documented evidence that I had a previous injury that prohibited me from urinating, but it is not in my file.” Void did not present any witnesses or other evidence in support of his case. Following the hearing, the DHO issued a written decision finding Void guilty of the charged offense. The DHO subsequently imposed the following sanctions: disallowance of forty days of good conduct time; sixty days of disciplinary segregation; and a 180-day loss of visiting privileges.
On March 18, 2008, Void filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, alleging that his due process rights had been violated during the disciplinary process.1 Specifically, Void claimed that: (1) the charging officer discriminated against him because he was black by not accepting his urine; (2) the charging officer failed to follow BOP Program Statement 6060.08 (“Urine Surveillance and Narcotic Identification”), which allows staff to extend the two-hour limit if warranted by specific situations; (8) contrary to the finding of the Regional Director, he did in fact advise the officer on July 11, 2007, that he had a medical problem that made it difficult for him to urinate; (4) and his due process rights were seriously violated when he was punished with the loss of forty days in good time credits “for being fifteen minutes late with a urine sample.” (Memorandum in support of § 2241 petition, at 4). By order entered May 30, 2008, 2008 WL 2237026, the District Court summarily dismissed the petition. Void filed a motion for reconsideration to which he attached a prison medical record report dated June 4, 2008, indicating that he had had a biopsy of his prostate in December 2007, and that his provisional diagnosis on June 4, 2008, was “prostatic obstruction.” The District Court denied reconsideration, ruling that the recently acquired medical record did not alter the court’s opinion that Void was afforded all the process he was due under Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The District Court noted that Void had admitted at the hearing that his urine sample was late and that his record contained no documentary evidence of his medical condition. Void now appeals from the District Court’s orders.
We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 2253(a). We review a District Court’s denial of habeas corpus relief de novo. Marshall v. Hendricks, 307 F.3d 36, 50 (3d Cir.2002). We review the District Court’s factual findings for clear error. See, e.g., Ruggiano v. Reish, 307 F.3d 121, 126 (3d Cir.2002).
It is well established that “prison disciplinary proceedings are not part of a criminal prosecution and the full panoply of rights due a defendant in such proceedings does not apply.” Wolff, 418 U.S. at 556, 94 S.Ct. 2963. The Supreme Court has, how*820ever, recognized a set of minimum procedural protections that must apply to prison disciplinary proceedings when, as in this case, a prisoner’s good-time credit is at stake.2 Id. Specifically, when good-time credit is at stake, a prisoner is entitled to: (1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety or correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action. Id. at 563-67, 94 S.Ct. 2963. “Revocation of good time does not comport with the minimum requirements of procedural due process unless the findings of the prison disciplinary board are supported by some evidence in the record.” Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985) (internal quotation and citation omitted). The “some evidence” standard is a quite deferential one. It does not require examination of the entire record, independent assessment of the credibility of witnesses or the weighing of evidence. Id. at 455-56, 105 S.Ct. 2768. The court need only consider whether there was any evidence in the record that could support the conclusion reached by the prison disciplinary deci-sionmaker. Id.
Upon review, we agree with the District Court that Void received all the process he was due during the disciplinary proceedings. The record reveals that Void was given 24 hours’ notice of the charges against him in accordance with 28 C.F.R. § 541.17(a); that he was provided the opportunity to call witnesses and present documentary evidence in his defense; and that he was issued a written decision setting forth the evidence relied on, and reasons for, the disciplinary action. See Wolff, 418 U.S. at 563-67, 94 S.Ct. 2963.
Furthermore, although the evidence of willfulness was spare and the penalty rather severe under the circumstances, we are constrained to conclude that the DHO’s findings wei'e supported by “some” evidence in the record. The DHO based the guilty finding on the charging officer’s report and on Void’s admission that he did not provide a sample with the two hour deadline, that he provided one fifteen minutes later, and that the officer would not take it, as corroborating the officer’s report. We agree with the District Court that this evidence meets the minimal requirements imposed by the Due Process Clause.3 See Hill, 472 U.S. at 454, 105 S.Ct. 2768.
As for Void’s contention that the prison failed to follow BOP Program Statement 6060.08 (“Urine Surveillance and Narcotic Identification”), the BOP Program Statement permits extensions of time to provide a urine sample in specific circumstances, including, inter alia, when the inmate has a documented medical condition. Here, there was no documentation *821of Void’s medical condition in his prison record at the time he was asked to give a urine sample or at the time of his disciplinary hearing. The record does not support Void’s contention that he told the charging officer about his medical condition. The Regional Director noted that there was no indication in the hearing record that Void told the charging officer of his medical condition. (See Appeal Response of Regional Director Dodrill, at 2.). In his Central Office Administrative Remedy Appeal, Void claimed only that “he requested to be placed in a secure, dry room until his nerves calm down enough to urinate.” (See Void’s Administrative Appeal dated October 23, 2007, at 1).
The District Court properly denied Void’s motion for reconsideration. See Max’s Seafood Café v. Quinteros, 176 F.3d 669, 673 (3d Cir.1999) (abuse of discretion standard).
Accordingly, we will affirm the District Court’s order denying Void’s petition for writ of habeas corpus.
. With an exception noted below, Void exhausted his administrative remedies before initiating the present action.
. While the Due Process Clause protects against the revocation of good-time credit, it does not provide the same level of protection against the other forms of discipline that Void received. See Torres v. Fauver, 292 F.3d 141, 150-51 (3d Cir.2002) (citing Sandin v. Conner, 515 U.S. 472, 486, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)).
. Void failed to properly exhaust his race-based disciplinary claim through the appropriate prison channels. A federal prisoner must exhaust his administrative remedies before petitioning for a writ of habeas corpus pursuant to § 2241. Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 760 (3d Cir.1996). Proper exhaustion requires that a petitioner assert an issue or claim at every administrative level. Id. at 761. Here, Void did not raise the issue of the charging officer's alleged race-based discriminatory behavior in his administrative appeals and he would be foreclosed from doing so now. Hence, his claim was properly dismissed. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471885/ | OPINION OF THE COURT
RENDELL, Circuit Judge.
In this appeal from the District Court’s grant of summary judgment in favor of the defendant Norman Y. Mineta, Secretary of the Department of Transportation, and against plaintiff Gianfranco Caprio, plaintiff contends that he suffered discrimination based on his physical impairment, in violation of the Rehabilitation Act of 1973, §2 et seq., 29 U.S.C.A. § 701 et seq.; Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq. We must decide two issues: (1) whether Caprio’s first Equal Employment Opportunity Commission (“EEOC”) charge was properly dismissed as untimely; and (2) whether the District Court correctly concluded that insufficient evidence supported Caprio’s claims that he was “disabled,” and that, based on this disability, the defendant discriminated against him. Finding no error in the District Court’s analysis, we will affirm the grant of summary judgment.
Caprio was employed as an air transportation systems specialist for the defendant in Newark, New Jersey in January 1999, when he suffered a medial-meniscus tear in his knee. After undergoing surgery Caprio abstained from his job, which in*826volved climbing towers, on his doctor’s advice. During his recovery, Caprio sustained further injury to his knee, requiring a second operation in March 2000. Caprio was out of work from January 1999 to July 2000. In 1999, Caprio toured the Newark site on two occasions with either crutches or a cane.
In a letter to Caprio in June 2000, defendant proposed to remove plaintiff from his position because he was unavailable for duty. The letter noted that defendant had previously asked Caprio to indicate his anticipated date of return to duty, and that, in response, Caprio had transmitted a letter from his physician indicating that he was unable to work at that time.
Caprio returned to work in a limited duty capacity on July 6, 2000, as his doctor advised against his climbing towers or bending and squatting. Caprio had a new supervisor, Raguey Manseour, who had assumed that position while plaintiff was on leave. Caprio was assigned to sedentary work at defendant’s Airway Facilities Division in Garden City, Long Island (“Liberty SMO”), which resulted in a four-hour daily commute. One month later, Caprio returned to work at the Newark site without restrictions.
Caprio sought EEOC counseling in October 2000 and filed his first EEOC charge approximately three months later in January 2001. Caprio’s first charge focused on his transfer to Liberty SMO, and the lack of cooperation and administrative assistance provided to him by the defendant after his injury. The EEOC dismissed as untimely plaintiffs allegation that hostility toward his physical impairment prompted the transfer to Liberty SMO; however, the EEOC accepted for investigation plaintiffs allegations of discrimination and harassment related to his administrative difficulties in 1999 and 2000.
In April 2002, Caprio filed a second EEOC charge, alleging that defendant engaged in a continuing pattern and course of conduct of harassment, discrimination on the basis of his knee injury, and reprisal based on his prior EEOC complaint. Caprio alleged, among other things, that defendant discriminated against him regarding leave, overtime, and training, and engaged in intimidation and harassment.
The Administrative Law Judge consolidated Caprio’s EEOC charges and issued a summary disposition in favor of the defendant. The EEOC affirmed, and Caprio subsequently sought relief in the District Court, arguing that the defendant violated the Rehabilitation Act by (1) discriminating against him based upon his disability, (2) subjecting him to a hostile work environment based on his disability, and (3) retaliating against him for engaging in protected activity. The District Court granted summary judgment in favor of defendant. Caprio appealed.1
Caprio’s first contention is that the District Court erred in dismissing certain allegations in his first EEOC charge as untimely. Under the Rehabilitation Act, a plaintiff must seek EEOC counseling within 45 days of the “discrete” discriminatory act alleged. .Here, Caprio did not seek EEOC counseling until October 2000 — approximately three months after his assignment to Liberty SMO in July 2000. Ca-*827prio makes two arguments in this regard: (1) that his temporary transfer to Liberty SMO did not constitute a “discrete” act triggering the 45-day consultation deadline; and (2) that he did not discover that his transfer was discriminatorily motivated until September 2000 — after the 45-day deadline had elapsed.
Caprio’s first argument is easily dispatched. Caprio’s transfer to Liberty SMO resulted in a substantial modification of his job responsibilities. Caprio’s prior position involved manual labor, including climbing towers; however, Caprio performed solely sedentary work at Liberty SMO. Further, the transfer to Liberty SMO increased his daily commute time to four hours. This additional travel time, which was uncompensated, represented a meaningful change from his prior job in Newark, New Jersey. Hence, Caprio’s transfer was at least as significant as other employment acts that we have deemed “discrete” adverse actions, including termination, failure to promote, denial of transfer, refusal to hire, wrongful suspension, wrongful discipline, denial of training, and wrongful accusation. O’Connor v. City of Newark, 440 F.3d 125, 127 (3d Cir.2006).2 Moreover, Caprio based his first EEOC charge in large part on this transfer.
Caprio’s second contention — that his violation of the consultation requirement should be excused because he only discovered the discriminatory motive for his transfer after the deadline had elapsed — is also meritless. Federal regulations permit an extension of the 45-day time period, where a plaintiff “did not know and reasonably should not have ... known” that the discriminatory matter or personnel action occurred. 29 C.F.R. § 1614.105(a)(2). Here, Caprio maintains that he did not know that his transfer was discriminatorily motivated until a colleague informed him that other employees with mobility restrictions had been reassigned to positions in the Newark office, and had not been transferred to Liberty SMO.
Caprio, however, must demonstrate that his lack of awareness as to defendant’s actual motivation was reasonable. See McCants v. Glickman, 180 F.Supp.2d 35, 40 (D.D.C.2001) (rejecting extension of 45-day deadline where plaintiff had a “reasonable suspicion” of discriminatory motive based on facts known to him); see also Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924, 931 (5th Cir.1975) (noting that 90-day requirement to file EEOC charge begins to run when “facts that would support a charge of discrimination under Title VII were apparent or should have been apparent to a person with a reasonably prudent regard for his rights similarly situated to the plaintiff’); cf. Pacheco v. Rice, 966 F.2d 904, 906-907 (5th Cir.1992) (denying equitable tolling of the limitations period because a complainant has a duty of “diligent inquiry ... to proceed with a reasonable investigation in response to an adverse event”). Caprio does not contend that defendant prevented his access to information regarding how other *828mobility-restricted employees were treated, or that such information was not reasonably discoverable. To the contrary, Caprio acknowledges that he was able to glean this information through an informal conversation with a co-worker. Moreover, in his appellate brief, Caprio focused on purported conduct in early July, including his transfer, as apparently perceived by him at the time, as the basis for his claim:
Before any termination was effectuated, Caprio returned to work, on July 6, 2000, in a limited duty capacity with the assistance of a walking cane. Upon his return to work, he was treated with disrespect, and was essentially cast aside. He was detailed to the Liberty SMO (Sector Management Office), located in Garden City, Long Island, and asked to perform menial and degrading work. Travel time to and from Liberty SMO was approximately four hours per day. While at Liberty SMO, he spent about two hours per day performing filing duties.
Appellant’s Br. at 4 (emphasis added). On these facts, we conclude that Caprio clearly suspected that his transfer to Liberty SMO was discriminatorily motivated. Because Caprio failed to consult with the EEOC within 45 days of his transfer to Liberty SMO, and because he is ineligible for an extension of the 45-day deadline under § 1614.105(a)(2), the District Court properly dismissed Caprio’s first discrimination complaint as untimely.
Next, Caprio contends that the District Court erred in dismissing his hostile work environment, discrimination, and retaliation claims. Fatal to these claims, in the District Court’s view, was Caprio’s failure to establish either that he was disabled (or regarded as disabled), or that his disability motivated the adverse actions alleged. On appeal, Caprio urges that he was both actually disabled and regarded as disabled, because the defendant was fully aware that he was unable to perform his prior job, which required climbing towers, and that he could not ambulate without a cane.
Even if Caprio were able to establish an actual or perceived disability under the Rehabilitation Act, he fails to establish causation — to identify facts sufficient to create a triable issue as to whether his impairment motivated the discriminatory acts complained of, including his transfer to Liberty SMO, the denial of his requests for leave for medical visits, and the denial of training opportunities requested. See Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 (3d Cir.2000) (requiring proof of a “causal link” between the employee’s protected activity and the employer’s adverse action); Gaul v. Lucent Technologies, Inc., 134 F.3d 576, 580 (3d Cir.1998) (requiring proof that plaintiff suffered an adverse employment decision “as a result of discrimination”). Caprio fails to adduce any direct or indirect evidence that would support an inference that defendant’s actions' were motivated by discriminatory animus. To the contrary, the record discloses non-discriminatory reasons for the actions taken, including Ca-prio’s substantial delay in completing training, his failure to request leave in a timely manner, and his union activities. Because Caprio failed to adduce evidence sufficient for a reasonable jury to conclude that the discriminatory acts alleged were specifically motivated by hostility towards his physical impairment, summary judgment was proper.
For the foregoing reasons, we will AFFIRM the order of the District Court.
. The District Court had subject matter jurisdiction under 28 U.S.C. § 1331, and our jurisdiction is proper under 28 U.S.C. § 1291. Our review of the District Court's grant of summary judgment is plenary. Summary judgment is only appropriate if there are no genuine issues of material fact, and the mov-ant is entitled to judgment as a matter of law. In reviewing the District Court's grant of summary judgment, we review the facts in the light most favorable to the nonmoving party. AT & T Corp. v. JMC Telecom, LLC, 470 F.3d 525, 530 (3d Cir.2006).
. In O'Connor, plaintiffs had alleged a variety of discriminatory acts, including:
that the department denied him a promotion, failed to expunge his disciplinary record, transferred him to a position under the command of a superior officer who was hostile to him, provided him with inadequate staff and resources, assigned him excessive work, changed his work schedule, filed unwarranted disciplinary complaints against him, failed to credit him with overtime, awarded him a medal but failed to invite his family to the ceremony, and failed to give sufficient commendations to his unit. O’Connor also alleges that he was subjected to threats and assaults by other officers.
Id. at 126 n. 1. Significantly, we concluded that “nearly all" of these acts constituted “discrete" adverse employment actions. Id. at 127. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471887/ | OPINION
PER CURIAM.
Frank Freeland appeals pro se from the United States Tax Court’s Order and Decision granting the Commissioner of Internal Revenue’s (IRS) motion for summary judgment in this action to collect unpaid taxes. We will affirm.
I.
On March 30, 2007, following a Collection Due Process hearing (26 U.S.C. § 6330), the IRS Appeals Office in Philadelphia, Pennsylvania, issued a Notice of Determination approving a proposed levy upon Freeland’s property to collect unpaid income taxes for 2002 and 2003. Freeland timely sought review of this determination in the United States Tax Court. He argued, inter alia, that the Appeals Office improperly denied an opportunity to challenge the underlying determination of his tax liability. The IRS moved for summary judgment, arguing that the Appeals Office correctly precluded any challenge to the finding of liability because the IRS had *830mailed Notices of Deficiency to Freeland’s current address, and Freeland had failed to challenge those deficiency notices by filing a petition in the Tax Court.
Freeland elected not to appear on the date scheduled for a hearing on the summary judgment motion. On October 7, 2008, the Tax Court issued its Order and Decision entering summary judgment and allowing the collection action to proceed in accordance with the Notice of Determination. The Tax Court rejected Freeland’s claim that he was improperly denied an opportunity to contest the liability determination, and observed that Freeland made no showing of the issues that he would raise regarding his tax liability even if that question could be considered. The Tax Court noted that Freeland waived any further opportunity to challenge the Notice of Determination by failing to appear at the hearing, that Freeland’s arguments were otherwise groundless, and that the Appeals Office did not abuse its discretion. Freeland timely filed this appeal.1
II.
This Court has jurisdiction under 26 U.S.C. § 7482(a)(1). We exercise plenary review over the Tax Court’s entry of summary judgment. See Conn. Gen. Life Ins. Co. v. Comm’r, 177 F.3d 136, 143 (3d Cir.1999).
Freeland first contends that the Tax Court erred by “conducting a trial de novo rather than reviewing the record of Appellant’s Collection Due Process hearing.” According to Freeland, the Tax Court “admitted new evidence into the appeal” and failed to limit its review to the record before the Appeals Office. Freeland seems to object in particular to the evidence supporting the IRS’s motion for summary judgment on the question of its mailing of the 2002 and 2003 Notices of Deficiency.
We agree with the IRS that this contention lacks merit. The Tax Court expressly adjudicated Freeland’s appeal as a matter of law, and did not conduct a “trial de novo.” In its own words, the Tax Court held that “there is no genuine issue of material fact, ... no abuse of discretion occurred, and ... judgment may be entered as a matter of law.” We are satisfied that the Tax Court’s review was appropriate. Furthermore, in light of Freeland’s contention that he should be permitted to challenge the underlying determination of tax liability because he purportedly never received the Notices of Determination, the Tax Court did not im-permissibly expand the record by considering evidence of mailing (i.e., the USPS Forms 3877) that merely confirmed the basis for the Appeals Office’s finding that the Notices of Deficiency were in fact properly mailed to Freeland. See Robinette v. Comm’r, 439 F.3d 455, 462 (8th Cir.2006) (“[WJhere a record created in informal proceedings does not adequately disclose the basis for the agency’s decision, then it may be appropriate for the reviewing court to receive evidence concerning what happened during the agency proceedings. The evidentiary proceeding in those circumstances, however, is not a de novo trial, but rather is limited to the receipt of testimony or evidence explaining the reasoning behind the agency’s decision.”) (citation omitted).
Freeland next argues that the Tax Court erred in affirming the determination that the IRS properly delivered the Notices of Deficiency. Freeland claims that *831he “does not recall” receiving the Notices, and because he claims that the IRS failed to prove that he received the Notices, Freeland argues that he was impermissi-bly denied an opportunity to challenge the underlying determination of his tax liability-
A taxpayer at a Collection Due Process hearing can challenge the “existence or amount of the underlying tax liability for any tax period” if the taxpayer “did not receive any statutory notice of deficiency for such tax liability or did not otherwise have an opportunity to dispute such tax liability.” 26 U.S.C. § 6330(c)(2)(B). Here, the Appeals Office found, and the Tax Court affirmed, that Freeland was properly served with the Notices of Deficiency. The IRS submitted copies of the Notices along with evidence establishing certified mailing to an address that Freeland does not dispute is his proper mailing address. Freeland made no showing at all to overcome the presumption that proper mailing of the Notices was sufficient evidence of their delivery in this case. Freeland’s claim that he does not “recall” receiving the Notices does not undermine the finding of proper mailing.2 Consequently, because Freeland did not timely contest the Notices of Deficiency, the Appeals Office and the Tax Court did not err in precluding a challenge to the underlying liability determinations.
Freeland also suggests, as he did before the Tax Court, that the Appeals Office erred in failing to afford him a face-to-face Collection Due Process hearing. The Appeals Office found that Freeland failed to present any non-frivolous challenge to the proposed levy. Freeland has made no showing to rebut that conclusion. A Collection Due Process hearing need not be face-to-face when the petitioner raises only frivolous arguments. See 26 C.F.R. § 301.6330-l(d)(2)(A-D8) (“A face-to-face CDP conference concerning a taxpayer’s underlying liability will not be granted if the request for a hearing or other taxpayer communication indicates that the taxpayer wishes only to raise irrelevant or frivolous issues concerning that liability.”). We discern no error in the decision to afford Freeland a telephonic hearing only.
We have considered Freeland’s remaining contentions and find them without merit. We will affirm the Tax Court’s decision.
. On November 14, 2008, Freeland filed a "Motion to Vacate Order and Decision,” which the Tax Court denied on November 18, 2008. Freeland does not expressly challenge on appeal the decision to deny his Motion to Vacate, and thus we limit our analysis to the Tax Court's October 7, 2008, Order and Decision.
. In addition, Freeland's attempt to case doubt upon delivery of the Notices is undermined by the record evidence that: (1) he attached a copy of the 2003 Notice of Deficiency to his Amended Petition before the Tax Court, suggesting that he had received at least the 2003 Notice; (2) he stated to the Appeals Office, "I don’t open my mail anymore,” which is hardly evidence of non-delivery; and (3) he appears to have received every other item that the IRS has mailed to the same address in this matter. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471889/ | OPINION
SMITH, Circuit Judge.
Appellant Anthony Guinto pleaded guilty to conspiracy to distribute heroin, in violation of 21 U.S.C. § 846, possession with intent to distribute heroin, in violation of 21 U.S.C. § 841, and two counts each of distx*ibution of hex-oin, in violation of 21 U.S.C. § 841(a)(1), and aiding and abetting, in violation of 18 U.S.C. § 2. The District Court sentenced him to fifty months of imprisonment followed by ten years of supervised release. Guinto filed a timely appeal challenging the X’easonableness of his term of supervised release.1
*833All parties agree that Guinto’s properly calculated Sentencing Guidelines range for supervised release was exactly six years. We believe it plain, however, that the District Court miscalculated that range to be at least six years. At sentencing, the Court twice referenced Guinto’s Guidelines range for supervised release, and twice stated that it was “at least six years.” The Presentence Investigation Report also listed the range as “at least six years.” Finally, before imposing a sentence, the Court said that it was “prepared to sentence within the sentencing guidelines,” “intended] to sentence within the guidelines ...,” and “intended] to sentence within the guidelines as calculated by the probation office.” The only way to reconcile these three statements with Guinto’s sentence to an above-Guidelines ten-year term of supervised release is to conclude that the District Court mistakenly believed Guinto’s Guidelines range for supervised release to be at least six years. Therefore, the record clearly demonstrates that the District Court miscalculated the applicable Guidelines range.
The Government argues that we should affirm Guinto’s sentence on the basis that the deviation from the properly calculated Guidelines range was a permissible variance based on the factors listed in 18 U.S.C. § 3558(a). We disagree. A district court can only apply a variance after it correctly calculates the applicable Guidelines range. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007) (“[A] district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range.”); United States v. Tomko, 562 F.3d 558, 567 (3d Cir.2009) (en banc) (“ ‘A district court must begin the [sentencing] process by first calculating the applicable Guidelines range.’ ” (quoting United States v. Levinson, 543 F.3d 190, 194-95 (3d Cir.2008))). Therefore, whether the District Court applied a variance is beside the point; the relevant inquiry is whether its Guidelines calculation contained an error.
Moreover, the record is clear that the District Court imposed an above-Guidelines term of supervised release, not because it believed a variance was appropriate, but because it miscalculated the applicable Guidelines range. The Court never used the term “variance” to describe Guinto’s ten-year term of supervised release. Instead, it told Guinto that it would impose “a more extended period of supervised release.” This characterization is entirely consistent with both a mistaken belief that Guinto’s Guidelines range was “at least six years” of supervised release and the Court’s express intention to “sentence within the guidelines”: the ten-year term reflected a “more extended period” that was still “within the guidelines” range of “at least six years.” In contrast, viewing the Guinto’s sentence as a variance is, by definition, at odds with the Court’s statements that it would “sentence within the guidelines.” See United States v. Vampire Nation, 451 F.3d 189, 195 n. 2 (3d Cir.2006) (noting that variances are “not based on a specific Guidelines departure provision”). Therefore, it is plain that the District Court erroneously calculated Guinto’s Guidelines range for supervised release.
Notwithstanding the obviousness of this Guidelines miscalculation, Guinto did not object in the District Court, nor did he fully brief the issue on appeal until he filed his reply brief. Had Guinto sufficiently raised the issue in his opening brief, we would have little trouble holding that the Guidelines miscalculation required a remand even under plain error review. See United States v. Knight, 266 F.3d 203, 207-08 (3d Cir.2001) (concluding that “an error in application of the Guidelines that results in use of a higher sentencing range *834should be presumed to affect the defendant’s substantial rights” and that the practical effect of this presumption “is that a sentence based upon a plainly erroneous Guideline range will ordinarily be remanded so that the District Court may exercise its discretion to choose an appropriate sentence based upon the correct range, unless the record shows that the sentence was unaffected by the error”). As it stands, however, the untimely manner in which Guinto offered this assertion poses a significant obstacle to relief because “[a] reply brief is generally too late to raise an issue under our jurisprudence.” United States v. Geevers, 226 F.3d 186, 196 n. 9 (3d Cir.2000).
While we rarely grant exceptions to this general rule, we have done so where the appellee had an opportunity to respond to the issue and other compelling circumstances existed. See United States v. Boggi, 74 F.3d 470, 478 (3d Cir.1996). In Boggi, we addressed two arguments raised for the first time in the appellant’s reply brief because “the Government had an opportunity to respond to the arguments” in its cross-appeal, and one of the appellant’s arguments “raises a question which we feel requires clarification in this circuit.” Id. Likewise, here, the Government apparently construed Guinto’s opening brief as asserting an error in the Guidelines calculation: it argued in its brief that we should view the above-Guidelines term of supervised release as a variance “if the [district] court did not even recognize that it was exceeding the guideline range, as Guinto suggests.... ” Additionally, we believe the District Court’s error so plain and, in light of its repeated statements that it intended to sentence Guinto within the Guidelines range, the resulting prejudice so manifest that the circumstances compel us to excuse Guinto’s belated raising of the Guidelines miscalculation issue. Accordingly, we will vacate Guinto’s sentence and remand the case to the District Court for resentencing.
. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471891/ | OPINION OF THE COURT
RENDELL, Circuit Judge.
On March 9, 2007, Brian Mizwa pleaded guilty to one count of Coercion and Enticement of a Minor to Engage in Sexual Activity, in violation of 18 U.S.C. § 2422(b). The District Court sentenced him to a statutory minimum term of 60 months’ imprisonment, followed by a five-year period of supervised release. On appeal, Mizwa challenges a condition of his supervised release that limits his association with minor children, arguing that the condition is unduly onerous and that the District Court did not adequately consider the § 3558 sentencing factors. Because we conclude that the District Court properly imposed the condition, pursuant to 18 U.S.C. § 3583(a), we will affirm the judgment of the District Court.
Mizwa’s guilty plea arose out of his approximately month-long online interaction in September of 2006 with a person he thought was a 14-year-old girl named “Hannah,” but who was actually an undercover FBI agent. Mizwa’s instant messages and e-mails suggested that he and “Hannah” meet in person but keep their relationship a secret. He sent her pictures of underwear and a bikini that he had bought for her to wear when they met, expressed his desire for her to take his clothes off and perform oral sex on him, and for her to wear a baby diaper and sit on his lap. Mizwa set up a rendezvous with “Hannah” at a shopping center; when he went to the spot where he had arranged to meet her, FBI agents arrested him. He admitted to soliciting a minor for sexual activity.
Mizwa was released on bond after his arraignment, on October 24, 2006, and restricted from having contact with minors without authorization from Pretrial Services. On November 29, 2006, local police told the Probation Office that Mizwa was living with a woman who had young children. He was arrested and his bond revoked. After he pleaded guilty, on March 9, 2007, Mizwa was released on bond with the same condition that he not have contact with minors without authorization. On August 24, 2007, Pretrial Services filed another petition to have his bond revoked because of allegations that Mizwa had once again visited the home of the woman with young children. He was not detained.
On October 11, 2007, the District Court sentenced Mizwa to the statutory minimum term of 60 months, followed by a *836five-year term of supervised release. The court imposed a number of special conditions, one of which is relevant to Mizwa’s appeal. It directs that Mizwa:
shall not associate with children under the age of 18, except in the presence of a responsible adult who is aware of the nature of the defendant’s background and current offense and who has been approved by the probation officer.
(App.5.)
Mizwa’s counsel objected to the condition at sentencing. Therefore, we review the District Court’s imposition of the condition of supervised release for abuse of discretion. See, e.g., United States v. Voelker, 489 F.3d 139, 143 n. 1 (3d Cir.2007); United States v. Smith, 445 F.3d 713, 716 (3d Cir.2006).1
A district court has wide discretion in imposing sentences. 18 U.S.C. § 3583 enumerates a number of mandatory and discretionary conditions of supervised release, and provides that “[t]he court may order, as a further condition of supervised release ... any other condition it considers to be appropriate.” 18 U.S.C. § 3583(d). The condition must be reasonably related to the sentencing factors set forth in § 3553(a), the nature and circumstances of the offense and the history and characteristics of the defendant, and must involve no greater deprivation of liberty than is reasonably necessary to afford adequate deterrence, to protect the public from future crimes, and to rehabilitate the defendant. 18 U.S.C. § 3553(a); 18 U.S.C. § 3583(d); see also Voelker, 489 F.3d at 144; United States v. Pruden, 398 F.3d 241, 248-49 (3d Cir.2005).
Mizwa argues that the condition restricting his contact with minors is not reasonably related to the § 3553(a) factors. He contends that his offense was related primarily to his emotional immaturity and difficulties with intimate relationships, not a sexual interest in young girls, and therefore the condition is unduly onerous. We disagree. The special condition is closely related to the nature and circumstances of Mizwa’s offense: he targeted a person he thought was a young teenaged girl and solicited her for sexual activity, and cautioned her to keep their relationship secret because of her age. A condition of supervised release that restricts Mizwa’s contact with minors could hardly be more related to the nature and circumstances of his offense. That Mizwa does not have a history of violent crime does not lessen the seriousness of his offense or his intended victimization of a young girl.
Nor does the condition involve a greater deprivation of liberty than necessary, particularly since Mizwa violated the conditions of his release on bond after his arraignment but before his guilty plea. The association restriction is designed to protect the public, to promote Mizwa’s rehabilitation, and to deter him from future crimes by keeping him away from children and teenagers; his own psychologist concluded that Mizwa continues to show sexual interest in adolescent females.
Mizwa also argues that the District Court did not sufficiently explain why it imposed the association restriction. Again, we disagree. The court noted during sentencing that it was imposing a “lengthy period of supervision with extensive conditions to monitor [Mizwa’s] conduct upon release” and that the sentence would “address the sentencing goals of punishment, rehabilitation and deterrence.” (App.47-48.)
Mizwa also claims that the District Court refused to give his psychologist’s report due weight, but the court referred to the report during sentencing, noting *837that “[t]he psychologist concluded that defendant is both emotionally and socially immature and relatively inexperienced with regard to adult relationships.” (App.40.)
Our court has addressed similar conditions of supervised release a number of times, and the condition imposed on Mizwa by the District Court is well within the bounds that we have established. In United States v. Voelker, 489 F.3d 139 (3d Cir.2007), we vacated a condition where the defendant was prohibited from associating with minors without prior approval of his probation officer, and any contact that did occur was to be in the presence of an adult familiar with the defendant’s crime. Although the language of the condition in Voelker is similar to that of the condition at issue here, the condition in Voelker was imposed for the defendant’s entire life. Mizwa’s condition applies for only five years. One of our concerns in Voelker was that the district court had not made clear whether it intended the lifetime ban to extend to the defendant’s own children. See 489 F.3d at 144. Voelker had exposed his young daughter’s bare buttocks to a web camera, and we declined to apply the presumption from United States v. Loy, 237 F.3d 251, 270 (3d Cir.2001) (“Loy II ”), that absent a clear sign from the District Court, a condition that restricts a defendant’s contact with minors is construed to apply only to other people’s children, not the defendant’s own. Here, Mizwa does not have children of his own, and we see no reason why the Loy II presumption would not apply to any children he might have in the future. Mizwa’s situation is distinguishable from that in Voelker. Further, we note that Mizwa’s contact with children is not prohibited outright; rather, it is subject to oversight by another responsible adult who knows his history and who has been approved by his probation officer. Mizwa’s liberty interest in associating freely with minors is not unduly burdened by this condition.
We conclude that the District Court did not abuse its discretion when it imposed a condition of supervised release that restricted Mizwa’s association with minors.
For the reasons set forth above, we will AFFIRM the Order of the District Court.
. We have jurisdiction under 28 U.S.C. § 1291. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471897/ | *845OPINION
PER CURIAM.
Chad Hatten appeals from the District Court’s order denying for lack of subject matter jurisdiction his habeas petition pursuant to 28 U.S.C. § 2241. The Government has moved for summary affirmance. Because we agree that Hatten cannot challenge his federal identity theft conviction with a § 2241 petition, and that he instead must do so pursuant to 28 U.S.C. §§ 2244 and 2255, we will grant the Government’s motion and affirm the order of the District Court.
I.
Hatten is currently serving a ninety-month sentence based on his convictions in the United States District Court for the Southern District of Texas for Fraud in Connection with Access Devices, Access Device Fraud, and Aggravated Identity Theft. In July 2007, Hatten filed a § 2255 motion, which was denied on the merits. His request for a certificate of appealability (“COA”) was also denied. See United States v. Hatten, No. 08-20487 (5th Cir. June 22, 2009).
While his COA request was pending in the Fifth Circuit, Hatten filed the § 2241 petition at issue. Therein, Hatten claimed “actual innocence” of Aggravated Identity Theft and argued that his sentence for that crime has resulted in an Ex Post Facto Clause violation. Given that Hatten was being confined in FCI-McKean at the time, the § 2241 petition was transferred from the Southern District of Texas to the United States District Court for the Western District of Pennsylvania. See Hatten v. United States of America, No. 07-cv-02927, dkt #4 (S.D.Tx. Nov. 23, 2007).
After the transfer, Hatten moved for summary judgment on his § 2241 petition. The Magistrate Judge concluded that since Hatten’s “claims challenge the imposition of his sentence, rather than the execution of his sentence, a habeas corpus petition filed under § 2241 is not the appropriate vehicle.” The Magistrate Judge also concluded that Hatten was not entitled to “the benefit of § 2255’s savings clause.” The District Court adopted the Magistrate Judge’s report and recommendation, denied Hatten’s motion for summary judgment, and dismissed his habeas petition for lack of subject matter jurisdiction. Hatten appealed.
II.
We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253(a). A COA is not required to appeal from the denial of Hatten’s § 2241 petition. See Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir.2009). We exercise plenary review over the District Court’s legal conclusions, and review its factual findings for clear error. See Ruggiano v. Reish, 307 F.3d 121, 126 (3d Cir.2002). Summary affirmance is proper when “it clearly appears that no substantial question is presented or that subsequent precedent or a change in circumstances warrants such action.” Third Circuit I.O.P. 10.6.
III.
The presumptive means by which a federal prisoner can challenge the validity of his conviction or sentence is by motion pursuant to 28 U.S.C. § 2255, unless such a motion would be “inadequate or ineffective.” Okereke v. United States, 307 F.3d 117, 120 (3d Cir.2002). Lack of success in a previous § 2255 motion, without more, does not render § 2255 inadequate or ineffective; nor do AEDPA’s restrictions on filing successive § 2255 motions. See Cradle v. United States ex rel. Miner, 290 F.3d 536, 539 (3d Cir.2002). We agree with the Government that Hatten’s case does not fit within the narrow class of *846circumstances where a § 2255 motion would in fact be inadequate or ineffective to challenge a conviction, and that the District Court properly dismissed Hatten’s § 2241 petition for lack of subject matter jurisdiction.
Therefore, because no “substantial question” is presented by this appeal, we grant the Government’s motion for summary af-firmance and will affirm the judgment of the District Court. For Hatten’s benefit, we note that should he choose to file a subsequent § 2255 motion, he must obtain authorization to do so in accordance with the procedures outlined in 28 U.S.C. §§ 2244 and 2255. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471901/ | OPINION OF THE COURT
PER CURIAM.
Cazim Mrkulic, his wife Enisa, and his son, Alis, petition for review of an order of the Board of Immigration Appeals (BIA). For the reasons below, we will deny the petition for review.
The Mrkulics are natives of Yugoslavia and citizens of Bosnia-Herzegovina who entered the United States in March 2004. In February 2005, Cazim Mrkulic filed an application for asylum. He argued that he would be persecuted in Bosnia-Herzegovina based on his Muslim religion and his Montenegrin nationality. The Mrkulics were subsequently charged as removable for overstaying their admission periods. They conceded removability and sought asylum, withholding of removal, and relief under the Convention Against Torture (CAT).
At a hearing before an Immigration Judge (IJ), Cazim Mrkulic testified that, ever since the Balkan War began in 1992, he had been threatened and harassed by neighbors based on his Montenegrin accent. He stated that in January 2003 he was attacked by four men and stabbed in the abdomen with a knife. He stated that they called him a Montenegrin and said “why don’t you leave our land.” He later woke up in the hospital and was told by a doctor that he was lucky to be alive. He related that when he reported the attack to the police, he received no help.
Cazim stated that his son was attacked in December 2003. Alis was beaten and called a dirty dog from Montenegro. Ca-zim did not report his son’s beating to the police because the police had done nothing when he was attacked. Cazim testified that the family constantly had problems, including threatening phone calls, damage to their cars, slashed tires, and placement of garbage, even burning garbage, in front of their house. Enisa and Alis gave testimony which was consistent with Cazim’s.
The IJ denied relief and ordered the Mrkulics removed to Bosnia-Herzegovina. The IJ concluded that there was no evidence of a pattern or practice of persecution of Montenegrins in Bosnia-Herzegovina. The IJ noted that petitioners had not corroborated their testimony of the attack *850on Cazim with any independent evidence and concluded that they had not shown past persecution. The BIA adopted and affirmed the IJ’s decision. The BIA found no error in the IJ’s determination that the Mrkulics had not shown past persecution or a well-founded fear of future persecution. Assuming credibility, the BIA determined that the Mrkulics failed to carry them burden of proof because they did not provide corroborating evidence. The Mrkulics then filed a timely petition for review.
We have jurisdiction under 8 U.S.C. § 1252. We may reverse the BIA’s decision only if the record permits but one reasonable conclusion that is not the one reached by the Board. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). To establish eligibility for asylum, petitioners must demonstrate either past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. See Vente v. Gonzales, 415 F.3d 296, 300 (3d Cir.2005). For withholding of removal, they must demonstrate that it is more likely than not that they would suffer persecution in Bosnia-Herzegovina on account of these protected grounds. Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir.2003); 8 U.S.C. § 1231(b)(3)(A). To be eligible for withholding of removal under the Convention Against Torture, petitioners must demonstrate that it is more likely than not that they would be tortured if removed to Bosnia-Herzegovina. 8 C.F.R. § 208.16(c)(2).
First, Petitioners argue that the IJ failed to make a credibility determination. Assuming credibility, the BIA determined, however, that petitioners had failed to carry their burden of showing past persecution or a well-founded fear of future persecution. Next, the petitioners argue that the IJ failed to consider in the aggregate the physical attacks, threats, and mistreatment they suffered. We need not address the issue of whether the mistreatment alleged by petitioners rises to the level of persecution because the BIA concluded that petitioners had not provided sufficient corroborating evidence.
The petitioners argue that the IJ relied too heavily on the lack of corroboration and failed to evaluate Cazim’s reasons for failing to provide corroboration. The BIA agreed with the IJ that petitioners did not present sufficient corroborating evidence. We have held that the BIA may require credible applicants to provide corroborating evidence. See Abdulai v. Ashcroft, 239 F.3d 542 (3d Cir.2001). A corroboration analysis has three parts: “(1) an identification of the facts for which ‘it is reasonable to expect corroboration;’ (2) an inquiry as to whether the applicant has provided information corroborating the relevant facts; and, if he or she has not, (3) an analysis of whether the applicant has adequately explained his or her failure to do so.” Id. at 554 (citations omitted). We may not reverse the IJ’s finding with respect to the availability of corroborating evidence unless we find that a reasonable fact-finder would be compelled to conclude that such corroborating evidence is unavailable. 8 U.S.C. § 1252(b)(4); Sandie v. Attorney General, 562 F.3d 246, 252 (3d Cir.2009).
Cazim presented no medical records or police records related to the stabbing incident. He testified that he was never given any records. There was no evidence submitted to corroborate the beating of Alis. When the IJ asked the petitioners’ attorney if he wanted to ask Cazim any more questions about why he had no evidence from the hospital or police, the attorney declined. Thus, the IJ gave petitioners an opportunity to explain the absence of such evidence. C.A.R. at 179. While Cazim testified that he was not given any records, petitioners provided *851no evidence that such records were unavailable. While petitioners argue that the IJ made no finding as to the availability of the expected evidence, the IJ stated in her opinion, “[t]his Court finds that, with regard to the failure to present evidence of a police report or of a hospital admission or discharge in 2003, Respondents failed to provide evidence that is generally reasonable to expect of them.” App. at 87. The BIA concluded that it was reasonable for the IJ to expect such evidence. We believe that a reasonable fact-finder would not be compelled to disagree. Therefore, we will not disturb the BIA’s conclusion that petitioners failed to establish past persecution.
Petitioners also argue that they have a well-founded fear of persecution if removed to Bosnia-Herzegovina. The IJ found that there was no evidence presented of a pattern or practice of persecution against Montenegrins in Bosnia-Herzegovina. Petitioners point only to a few general statements from the 2005 Country Report on Bosnia-Herzegovina which indicate that ethnically motivated religious violence was directed against ethnic symbols, clerics, and buildings. Petitioners have not demonstrated that the record compels a finding of a well-founded fear of future persecution.1 Nor have they shown that the record compels a finding of likely persecution and torture in Bosnia-Herzegovina so as to entitle them to withholding of removal or relief under the CAT. Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir.2003); 8 C.F.R. § 208.16(c)(2).
For the above reasons, we will deny the petition for review.
. We note that petitioners' attorney agreed with the IJ that there was not a pattern or practice of persecution against Montenegrins in Bosnia-Herzegovina. C.A.R. at 176. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471907/ | OPINION
PER CURIAM.
Donald Earl, pro se, appeals from the District Court’s order denying his motion *859to intervene and his Rule 60(b) motion to vacate. For the reasons that follow, we shall affirm the District Court’s order.
This case relates to a civil class action products liability lawsuit filed in the District of New Jersey, and currently on appeal. See In Re: Pet Food Products Liability Litigation, D.N.J. Civ. No. 07-cv-02867; C.A. No. 08-4741 & 08-4779. That suit arose out of a March 2007 recall of pet food products that allegedly contained contaminated wheat gluten and/or rice protein concentrate obtained from China. Plaintiffs filed more than one hundred lawsuits against several defendants, including Menu Foods, one of the manufacturers of the recalled pet food products.
As a part of discovery, Menu Foods and several other defendants stored large quantities of various recalled food products. Those products were divided into three categories: 1) cases of pet food subject to the recall (“organized inventory”); 2) thousands of pounds of unprocessed, perishable raw wheat gluten; and 3) cases containing recalled and unrecalled pet food, pet food made by other companies, and other items (“unorganized inventory”). The defendants sought an order from the District Court permitting them to limit the amount of material they had to store. On December 18, 2007, the District Court entered an order granting the defendants’ motion, which allowed them to retain a statistically significant representative sampling of the organized inventory and to dispose of the remaining recalled pet food, the raw wheat gluten and the unorganized inventory.1 None of the plaintiffs in the class objected to the Court’s order.
Meanwhile, in Washington State, Appellant Donald Earl had initiated a separate lawsuit alleging that his cat had died after consuming pet food manufactured by Menu Foods and sold by The Kroger Company, a grocery store.2 Menu Foods notified Earl of the New Jersey District Court’s order permitting the disposal of the unorganized inventory. Earl filed an objection in the District Court, arguing that the unorganized inventory was material to his case and should not be destroyed. The District Court denied his objection. Menu Foods then filed a motion in the Superior Court of Washington for permission to dispose of the unorganized inventory as it related to Earl’s case, which the court granted. Earl attempted to reverse the preservation order, but was denied by the Washington state courts.3 Menu Foods completed its disposal of the unorganized inventory in June 2008.
Earl then returned to the New Jersey District Court, where in January 2009, he filed a Rule 60(b) motion to vacate the District Court’s order disposing of the unorganized materials, and a motion to intervene as a matter of right in the class action. However, Earl filed his motions nearly two months after the District Court entered a final judgment in the underlying Pet Food Recall Litigation and after the *860case was on appeal. The District Court denied his motions, finding that he did not demonstrate a sufficient interest in the unorganized inventory. It also denied his motion for reconsideration. Earl filed a timely notice of appeal.
This Court reviews the denial of a motion to intervene under Fed.R.Civ.P. 24(a)(2) for an abuse of discretion and should reverse only if the District Court “has applied an improper legal standard or reached a decision [the Court is] confident is incorrect.” United States v. Alcan Aluminum, Inc., 25 F.3d 1174, 1179 (3d Cir.1994); see also Liberty Mut. Ins. Co. v. Treesdale, Inc., 419 F.3d 216, 220 n. 4 (3d Cir.2005). A litigant seeking intervention as a matter of right under Fed.R.Civ.P. 24(a)(2) must establish: “1) a timely application for leave to intervene, 2) a sufficient interest in the underlying litigation, 3) a threat that the interest will be impaired or affected by the disposition of the underlying action, and 4) that the existing parties to the action do not adequately represent the prospective intervenor’s interests.” Treesdale, 419 F.3d at 220 (citing Kleissler v. United States Forest Serv., 157 F.3d 964, 969 (3d Cir.1998)). Each of these requirements “must be met to intervene as of right.” Mountain Top Condo. Ass’n v. Dave Stabbert Master Builder, Inc., 72 F.3d 361, 366 (3d Cir.1995) (citation omitted).
The District Court denied the motion to intervene on the ground that Earl’s interest was insufficient to warrant intervention stating that Earl had not “demonstrated that he has an interest in the ‘unorganized inventory’ requiring that this Court vacate its prior orders regarding that inventory.” It then denied his motion to vacate. We agree with the District Court that Earl did not show an interest in the unorganized inventory, as described below, but will also affirm on the basis that Earl’s motion to intervene was not timely filed. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir.1999) (stating that the Court may affirm an order on any ground that is supported by the record).
Here, Earl filed his motions to intervene and vacate nearly two months after the District Court had entered a final judgment in the underlying Pet Food Recall Litigation, and beyond the thirty-day statutory time period for filing an appeal. See Fed. R.App. P. 4(a). He did not file his motion to intervene for purposes of appealing the District Court’s final judgment, but for purposes of vacating an order that had no effect on the outcome of the underlying lawsuit. See Halderman v. Pennhurst State Sch. & Hosp., 612 F.2d 131, 134 (3d Cir.1979) (“Certainly, an effort to intervene after a judgment has become final ... presents an extreme example of untimeliness .... Where the purpose of a motion to intervene is to obtain appellate review of a district court order determining the status of a class, the motion may be considered timely if filed within the time limit for filing a notice of appeal.”) (citing United Airlines, Inc., v. McDonald, 432 U.S. 385, 392, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977)). As a result, Earl’s motion to intervene was untimely.
We also agree with the District Court that Earl did not demonstrate a sufficient interest in the litigation to warrant intervention. The purpose of his motion to intervene was to obtain an order vacating the District Court’s December 18, 2007 order authorizing the destruction of the unorganized inventory. None of the plaintiffs objected to that order and Menu Foods destroyed the inventory in June 2008, nearly nine months before Earl filed his motion to intervene to prevent its destruction. As a result, he had no sufficient interest in the underlying litigation. Since Earl could not intervene, he was not a party to the lawsuit and the District Court *861had no choice but to deny his Rule 60(b) motion.4 Moreover, even if the District Court could have granted his Rule 60(b) motion, to do so would have been meaningless once the unorganized inventory had been destroyed.
In conclusion, we agree that the District Court correctly denied Earl’s motions to intervene and to vacate. Costs will be assessed to the appellant. See Fed. R.App. P. 39(a)(2); LAR 39.5
. Defendants argued this was done so as to limit the significant costs of storing the materials and to dispose of materials that had become a public health hazard.
. At no point has Earl ever been a party to the class action lawsuit in the Pet Food Recall litigation. Furthermore, the pet food in Earl’s case was manufactured and sold before the period subject to the recall, although it is unclear from the record exactly how long before the recall.
.The Supreme Court of Washington found that the Superior Court had not abused its discretion in entering the disposal order. Earl, it held, had his own samples of the cat food from the relevant era, and had not shown “that his plan to retrieve 500 samples from the unorganized inventory, without any methodology establishing how these samples would be representative, would lead to admissible evidence.”
. In his brief, Earl also argues that: 1) Menu Foods attorneys violated the Rules of Professional Conduct by filing a motion to destroy evidence; and 2) that the District Court did not have subject matter jurisdiction or legal authority to grant a motion to destroy evidence. We will not consider these arguments in light of our holding that the District Court properly denied his motions to intervene and vacate.
. We also grant the Appellee’s motion to take judicial notice of the opinions filed by the courts of Washington state concerning Earl’s attempts to prevent the destruction of the evidence. We also grant appellee’s and appellant's motions to file supplemental appendices. | 01-04-2023 | 11-05-2022 |