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PER CURIAM: John Alan Miller appeals the district court’s orders accepting the recommendation of the magistrate judge and dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C. § 1915A(b) (2006) and denying reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Miller v. York Cnty. Public Defenders Ofc., No. 2:08-cv-03834-JFA (D.S.C. Dec. 31, 2008; filed Jan. 21, 2009 & entered Jan. 22, 2009). We deny Miller’s motions for punitive damages, to impose sanctions, to compel all information regarding Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), for transcript at government expense, for intervention, and motion for judgment. 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.

ORDER Kevin Adams is a Christian who asserts that he must attend all services offered by his church every Wednesday night and Sunday. When his employer, Value City, would not guarantee that he would never have to work Wednesday nights or Sundays, Adams sued Retail Ventures (doing business as Value City, the name that we use in this order), complaining of failure to accommodate his religion. Based on the hardship that such an accommodation would impose on Value City, the district court granted summary judgment to the defendant. We affirm. Except where otherwise noted, the following facts are not in dispute. Adams attends a Church of Christ, which he describes as a “general Christian” church. His church offers services Wednesday evening, Sunday morning, and Sunday evening. Adams maintains that as a matter of faith he must be at church for all three weekly services. In late 2001 Value City hired Adams as a door greeter, and gener ally avoided scheduling him on Wednesday nights or Sundays. Twice the store did schedule him on one of those days, but once he traded shifts, and once he took a day off. Then, in January 2006, the store eliminated the door-greeter position. The manager, Martin Hardin, met with Adams to discuss two other positions: receiver/stocker and cashier, though Adams testified that Hardin did not actually offer him the cashier position. During their discussion about the scheduling demands of the new positions, Hardin told Adams that he could have occasional Wednesday nights and Sundays off to worship, but Hardin would not guarantee him time off every Wednesday night and Sunday. Based on how Value City scheduled its shifts for those positions, Adams always would have been able to attend at least one service per week. But without the guarantee of time off the job to attend all three weekly services, Adams never returned to work. The record contains additional details about the new positions and Value City’s scheduling needs. At the time Value City eliminated the door-greeter position, the company employed approximately ten cashiers and seven receivers. According to an uncontested affidavit from Rick Walker, Value City’s vice president of store operations, the store scheduled most of the cashiers on most Sundays, but required all cashiers on certain Sundays— such as when there was a big sale. Additionally, weekend days are the most popular days off. Walker asserted that complying with Adams’s scheduling demand would have forced Value City to alter the schedules of other cashiers and receivers. He concluded that accommodating Adams would have caused “a significant scheduling strain on Value City.” As is relevant here, Adams sued Value City for failure to accommodate his religious practices. Value City and Adams both moved for summary judgment. The court decided the failure-to-accommodate claim for Value City, explaining that Adams could not establish a prima facie case because his insistence on attending every service offered by his church was not a bona fide requirement of his religion, and that the alleged conflict between his schedule and his religious beliefs was illusory because any schedule would have allowed him to attend at least one service per week. The court further concluded that Adams would have had a reasonable opportunity to worship had he accepted the job. In any event, the court continued, guaranteeing Adams Wednesday nights and Sundays off would impose an undue hardship on Value City. On appeal Adams first points out that the order granting summary judgment to the defendants does not discuss Adams’s own motion for summary judgment. But his two-page motion provided no supporting evidence, so it gave the court nothing to discuss. Adams also seems to contend that the court erred by granting Value City’s motion for summary judgment without receiving a response from him, explaining that he did not receive Value City’s motion. But after Value City moved for summary judgment, the court notified him of the consequences of failing to respond to the motion, and although he had three months to tell the court if he did not have the motion, he said nothing. He has thus forfeited that argument. See Local 15, Int’l Bhd. of Elec. Workers, AFL-CIO v. Exelon Corp., 495 F.3d 779, 783 (7th Cir.2007). In any event, we have considered Adams’s opposition to summary judgment as reflected in his brief on appeal and can decide this appeal on the merits. We review the grant of summary judgment de novo and will uphold it if there is no genuine issue of material fact and Value City is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Fane v. Locke Reynolds, LLP, 480 F.3d 534, 538 (7th Cir.2007). Title VII requires employers to make reasonable efforts to accommodate the religious practices of employees unless doing so would cause the employer undue hardship. See 42 U.S.C. § 2000e(j); Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 63 & n. 1, 107 S.Ct. 367, 93 L.Ed.2d 305 (1986); Reed v. Great Lakes Cos., 330 F.3d 931, 934 (7th Cir.2003). To survive summary judgment, a plaintiff must submit triable evidence of a prima facie case of religious discrimination, meaning evidence that (1) his bona fide religious practice conflicts with an employment requirement, (2) he notified the employer of the practice, and (3) the practice was the basis for an adverse employment action. EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569, 1575 (7th Cir.1997); EEOC v. United Parcel Serv., 94 F.3d 314, 317 (7th Cir.1996). Here, the parties dispute the first prong of that test, but we can assume that Adams has made a prima facie ease. The burden then shifts to the employer to show either that it reasonably accommodated the employee or that doing so would cause undue hardship, i.e., it would impose more than minimal hardship on the employer or other employees. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 81, 84, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977); Endres v. Ind. State Police, 349 F.3d 922, 925 (7th Cir.2003). Title VII does not require employers to deny the shift preferences of some employees in order to favor the religious needs of others. See Hardison, 432 U.S. at 81, 84, 97 S.Ct. 2264; Endres, 349 F.3d at 925. Value City has established that accommodating Adams’s schedule would have caused the company undue hardship. Value City submitted uneontroverted evidence that on some Sundays (one of the two most popular days off) all cashiers must work because of customer demand during busy sales. When Value City needed its full roster of cashiers working, if it gave Adams the day off it would either be short a cashier, resulting in lost efficiency, or have to hire another one, incurring extra cost. See Hardison, 432 U.S. at 84, 97 S.Ct. 2264. Furthermore, the company’s uncontested affidavit explained that accommodating Adams’s scheduling demand would have forced Value City to alter the schedules of other cashiers and receivers. Value City would have had to deny other employees their own shift preferences merely because the reasons for their requests were secular rather than religious, and that is a practice Title VII does not require of employers. See id. at 81, 84, 97 S.Ct. 2264. As the affidavit concluded, accommodating Adams would impose a significant scheduling strain on the company. We agree that all of this adds up to more than minimal hardship on Value City and its other employees. Adams’s remaining contentions are mer-itless. He complains that the district judge should have “suppressed” his deposition because he was not given an opportunity to cross-examine himself, but Adams could have submitted an affidavit to clarify any answers. See Buckner v. Sam’s Club, Inc., 75 F.3d 290, 292 (7th Cir.1996). Next, Adams contends that the judge erred by declining to recuse herself for bias after sanctioning him for filing vexatious motions, but the judge’s order sanctioning Adams did not display the sort of “deep-seated favoritism or antagonism” that would require recusal. Liteky v. United States, 510 U.S. 540, 554-55, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994); Grove Fresh Distribs., Inc. v. John Labatt, Ltd., 299 F.3d 635, 640 (7th Cir.2002). Finally, Adams complains that the law firm representing Value City had a conflict of interest, but Adams forfeited this argument by failing to raise it in the district court. See Local 15, 495 F.3d at 783. Accordingly, we AFFIRM the judgment of the district court.

OPINION PER CURIAM. Appellant, Elmer Rodriguez, appeals from an order entered by the United States District Court for the Middle District of Pennsylvania granting appellees’ motion to dismiss or, in the alternative, for summary judgment. For the reasons that follow, we will affirm the judgment of the District Court. The facts and procedural history of this case are well known to the parties. It is thus not necessary for us to restate them in great detail here. Rodriguez, a federal prisoner, filed the underlying complaint pursuant to 42 U.S.C. § 1983 on April 23, 2007, alleging that appellees were deliberately indifferent to his medical needs in violation of the Eighth Amendment. Rodriguez asserts that he was seen by C. Craig, a physician’s assistant (“P.A.”) at LSCI Allenwood, in October 2004 for knee pain. At that visit, Craig drained fluid from Rodriguez’s knee and, during the process, allegedly broke off part of the needle in Rodriguez’s knee. Rodriguez’s knee pain and swelling continued, and additional visits to the Health Services Unit failed to afford him relief. Rodriguez eventually complained of the care he received from Craig and sought, through the administrative grievance process, to have an MRI study completed and to be referred to an orthopaedic specialist. In accordance with the Bureau of Prison’s (“BOP”) administrative remedy process, Rodriguez made an “informal resolution” attempt, filed a request for administrative remedy and an appeal of that adverse decision to the Warden, and then took a further appeal to the Regional Director. However, according to Rodriguez, because he was advised that he would be “referred out” for an MRI and orthopaedic consult just prior to the expiration of the time period for taking his final appeal to the BOP’s Central Office, no appeal to that office was filed. An MRI was eventually completed on January 24, 2006. In the report issued with respect to the findings of that MRI, six (6) probable causes of Rodriguez’s knee pain were identified and a notation was made regarding a “metallic susceptibility artifact ... likely representing a small imbedded metallic object” that was noted just below the knee. During follow-up phone conversations with BOP personnel, the orthopaedic specialist advised that no surgery was necessary with respect to the findings of the January 24th MRI, and treatment recommendations included low impact activity and anti-inflammatory medications. Given the MRI notation regarding the metallic object, a series of x-rays were taken on April 22, 2006. The radiologist who reviewed Rodriguez’s films, however, failed “to identify a visible radiopaque metallic foreign body anywhere in the field of view of the knee radio-graphs.” Apparently dissatisfied with the manner in which appellees have responded to his concerns that a foreign metallic object remains in his body. The appellees responded to Rodriguez’s complaint with a motion to dismiss or, in the alternative, for summary judgment. Appellees argued that Rodriguez’s claim should be dismissed pursuant to Fed. R.Civ.P. 12(b)(6) because the applicable statute of limitations bars his claim and, alternatively, that summary judgment pursuant to Fed.R.Civ.P. 56 was warranted given Rodriguez’s failure to exhaust administrative remedies. The District Court agreed with appellees’ contentions and entered judgment in their favor. The District Court rejected Rodriguez’s contention that the discovery rule was applicable in this case and that it tolled the limitations period until January 2006, at which time the MRI provided evidence for his contention that P.A. Craig broke a needle inside his leg. The court concluded that Rodriguez’s complaint clearly revealed that the injury allegedly inflicted by P.A. Craig in October 2004 was not latent, and thus his claim was barred by the statute of limitations and would be dismissed pursuant to Rule 12(b)(6). The District Court further determined that, even assuming arguendo the claim was not barred by the statute of limitations, appel-lees were entitled to summary judgment insofar as Rodriguez failed to complete the administrative grievance process set forth in 28 C.F.R. § 542.15 as mandated by 42 U.S.C. § 1997e(a) and interpreted by both the Supreme Court and this Court. See District Court Opinion at 13, citing Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006); Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); Booth v. Churner, 532 U.S. 731, 739, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001); Nyhuis v. Reno, 204 F.3d 65, 78 (3d Cir.2000). The District Court found immaterial any explanation Rodriguez sought to offer with respect to his failure to exhaust administrative remedies. An appropriate order disposing of Rodriguez’s complaint was entered and this timely appeal followed. We have jurisdiction over the instant appeal pursuant to 28 U.S.C. § 1291, and exercise plenary review over the District Court’s order granting appellees’ motion to dismiss the complaint and for summary judgment. See Debiec v. Cabot Corp., 352 F.3d 117, 128 n. 3 (3d Cir.2003); Broselow v. Fisher, 319 F.3d 605, 607 (3d Cir.2003). In reviewing an order granting a motion for judgment on the pleadings, we accept all factual allegations in the complaint as true, and we draw all reasonable inferences in the light most favorable to the plaintiff. See Turbe v. Government of Virgin Islands, 938 F.2d 427, 428 (3d Cir.1991). “[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007)). A grant of summary judgment will be affirmed if our review reveals that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c). We review the facts in the light most favorable to the party against whom summary judgment was entered. See Coolspring Stone Supply, Inc. v. American States Life Ins. Co., 10 F.3d 144, 146 (3d Cir.1993). After careful review of the record, we find that summary judgment in favor of appellees was proper given Rodriguez’s failure to exhaust his administrative remedies. We initially point out that the exhaustion analysis in the instant case must focus on the claim which actually serves as the basis of Rodriguez’s complaint. The record is replete with assertions by Rodriguez that what he sought in the immediate aftermath of his October 2004 visit with P.A. Craig was an MRI and consult with an orthopaedic specialist. The record further indicates that Rodriguez concedes' he received exactly what was requested, and, in fact, this is the reason he chose not to file an appeal with the Central Office. The impetus behind the filing of the underlying Bivens complaint, on the other hand, is Rodriguez’s contention that appellees have since been deliberately indifferent to his serious medical needs by failing to provide for the removal of the metallic object which is allegedly embedded in his knee. See Complaint at p. 7 (“I have been living up to now with the expectation and fear if that piece of metal will travel through my organism, and damage any vital organ. Therefore, my claim for deliberate indifference, because medical department at Al-lenwood is aware of my claim.”); Complaint at 8 (“None of the above defendants has pay attention to my claim in order to have that object taken out of my body. [Tjhis has cause me mental, psychological and emotional damage.). While Rodriguez is correct in his assertion that the factual basis for this claim did not come to light until the MRI was conducted in January 2006, appellees properly argue that this claim has not been exhausted through the administrative grievance process. “[T]he PLRA exhaustion requirement requires proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). As the Supreme Court has noted, “[t]he benefits of exhaustion can be realized only if the prison grievance system is given a fair opportunity to consider the grievance. The prison grievance system will not have such an opportunity unless the grievant complies with the system’s critical procedural rules.” In the instant case, Rodriguez has failed to comply, to any extent, with the prison’s grievance system with respect to the Eighth Amendment claim of deliberate indifference presented in his complaint. At no level has the prison grievance sys tem been afforded the opportunity to address Rodriguez’s contention that he is in need of surgery in order to restore his health and protect his general well being. Accordingly, summary judgment in favor of appellees was warranted and we will affirm the judgment of the District Court. See Hi Tech Trans, LLC v. New Jersey, 382 F.3d 295, 297 n. 3 (3d Cir.2004), citing Nicini v. Morra, 212 F.3d 798, 805 (3d Cir.2000) (court of appeals may affirm for any reason supported by the record).

PER CURIAM: Ty Payton appeals his 210-month sentence following his guilty plea conviction for conspiracy to use and cany firearms during crimes of violence and two counts of carjacking. He argues that his non-guidelines sentence is unreasonable because the district court failed to provide an adequate explanation for the variance, the district court failed to address his argument that his mental illness represented a mitigating factor, and the variance was greater than necessary to satisfy the sentencing goals of 18 U.S.C. § 3553(a). To the extent that Payton argues that the district court failed to provide an adequate explanation for the variance, that issue is reviewed for plain error only. See United States v. Baker, 538 F.3d 324, 332 (5th Cir.2008), cert. denied, — U.S.-, 129 S.Ct. 962, 173 L.Ed.2d 153 (2009). The district court specifically cited to various § 3553(a) factors as the bases for the upward variance and then recited the factual basis for Payton’s guilty plea, which detailed the egregious series of events underlying Payton’s instant offenses. Our review of Payton’s sentencing indicates that Payton has failed to show plain error as to this issue. See United States v. Bonilla, 524 F.3d 647, 657-59 (5th Cir. 2008), cert. denied, — U.S. -, 129 S.Ct. 904, 173 L.Ed.2d 120 (2009). Despite the Government’s argument to the contrary, Payton preserved his mental illness claim by raising it in his sentencing memorandum. See United States v. Flanagan, 87 F.3d 121, 124 (5th Cir.1996). Moreover, he referenced his mental health issues at sentencing. Our review of the record shows that the district court read Payton’s sentencing memorandum, listened to his arguments, and imposed the non-guidelines sentence after consideration of Payton’s arguments, including his mental illness claim. Accordingly, Payton has failed to show that the district court committed a procedural error in this regard. See Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2468-69, 168 L.Ed.2d 203 (2007). The extent of the variance at issue in this ease is consistent with other sentences that this court has affirmed. See, e.g., United States v. Brantley, 537 F.3d 347, 348-50 (5th Cir.2008); United States v. Herrera-Garduno, 519 F.3d 526, 530-32 (5th Cir.2008); United States v. Smith, 440 F.3d 704, 708-10 (5th Cir.2006). Payton has not shown that his sentence is procedurally or substantively unreasonable. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). The district court’s judgment is AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

MEMORANDUM AmeriCERT Inc. appeals the district court’s denial of its motion to amend judgment under Rule 59(e) of the Federal Rules of Civil Procedure. AmeriCERT sought to amend the judgment to receive possession of various hardware and soft ware that was purchased in its name by Straight Through Processing (“STP”). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm. . Because specific grounds for a motion to amend or alter are not listed in Rule 59(e), the district court enjoys considerable discretion in granting or denying a motion. See Turner v. Burlington N. Santa Fe R.R. Co., 338 F.3d 1058, 1063 (9th Cir.2003) (citations omitted). “There are four grounds upon which a Rule 59(e) motion may be granted: 1) the motion is necessary to correct manifest errors of law or fact upon which the judgment is based; 2) the moving party presents newly discovered or previously unavailable evidence; 3) the motion is necessary to prevent manifest injustice; or 4) there is an intervening change in controlling law.” Id. (emphasis, citations, and internal quotation marks omitted). The district court did not abuse its discretion in denying the motion, because 1) AmeriCERT sought to amend the judgment to raise an argument that could reasonably have been raised earlier in the litigation; 2) no newly discovered evidence was presented by AmeriCERT; and 3) manifest injustice would not occur by denying the motion. Further, the proposed amendment would contradict the finding by the jury that STP had not converted AmeriCERT’s property. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

MEMORANDUM Berry Kiel Maselle, a native and citizen of South Africa, petitions for review of the Board of Immigration Appeals’ order affirming an immigration judge’s order of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review de novo questions of law, Morales-Alegria v. Gonzales, 449 F.3d 1051, 1053 (9th Cir.2006), and we deny the petition for review. Maselle’s contention that a conviction under CaLPenal Code § 422 does not categorically constitute a crime of violence is foreclosed by Rosales-Rosales v. Ashcroft, 347 F.3d 714, 717 (9th Cir.2003). Maselle’s remaining contentions are unpersuasive. PETITION FOR REVIEW DENIED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

PER CURIAM: Antwan Benthall appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Benthall v. McKay, No. 1:08-cv-01250-TSE-TRJ (E.D. Va. filed Dec. 29, 2008, entered Dec. 31, 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.

PER CURIAM: David E. Henderson appeals the district court’s order dismissing his action summarily asserting that Defendants refused to help him in'obtaining the medical retirement benefits he was allegedly denied in 1981, and asking his former union to proceed on his written request for benefits. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Henderson v. Naland, No. 1:08-cv-00535-LMB-TCB (E.D.Va. February 17, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED.

MEMORANDUM Rajinder Kumar Jhamb, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen and reconsider. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002), and we deny the petition. The BIA did not abuse its discretion in denying Jhamb’s second motion to reopen and reconsider as untimely and number-barred because it was filed over three years after the BIA’s final order, see 8 C.F.R. §§ 1003.2(b)(2), (c)(2), and Jhamb failed to establish grounds for equitable tolling, see Socop-Gonzalez v. INS, 272 F.3d 1176, 1193 (9th Cir.2001) (en banc) (equitable tolling available where “despite all due diligence, [the party invoking equitable tolling] is unable to obtain vital information bearing on the existence of the claim”) (internal quotation marks and citation omitted); see also Alvarez-Garcia v. Ashcroft, 378 F.3d 1094, 1097 (9th Cir.2004) (regulations requiring that aliens in exclusion proceedings apply for adjustment of status with district director are not unconstitutional). Jhamb’s remaining contentions are not persuasive. PETITION FOR REVIEW DENIED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

PER CURIAM: James W. Smith, III, appointed counsel for Phillip Wainwright in this appeal from the district court’s denial of a motion to reduce Wainwright’s sentence under 18 U.S.C. § 3582(c)(2), has moved to withdraw from further representation of the appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Because independent examination of the entire record reveals no issues of arguable merit, counsel’s motion to withdraw is GRANTED, and the district court’s denial of relief under § 3582(c)(2) is AFFIRMED.

ORDER SETTING SENTENCING GUIDELINES’ BASE OFFENSE LEVEL JAMES LAWRENCE KING, Chief Judge. This cause comes before the court on defendants’ objections to their sentencing guidelines score as calculated by the United States Probation Department, and the Government’s response thereto. The court will herein determine the base offense level to apply to defendants’ conduct of which the jury found them guilty in Count I. For the reasons given below, the court holds that defendants’ offense level must be computed as based on an underlying offense of murder. Under § 1B1.2 of the United States Sentencing Commission Guidelines Manual, the court must first “[djetermine the offense guideline section in Chapter Two (Offense Conduct) most applicable to the offense of conviction (i. e., the offense conduct charged in the count of the indictment or information of which the defendant was convicted) ...” United States Sentencing Commission, Guidelines Manual, § 1B1.2 (Nov.1989). In this case, defendants were convicted under 18 U.S.C. § 1958 (1984 & Supp.1990), the federal murder-for-hire statute. That statute provides Whoever travels in or causes another (including the intended victim) to travel in interstate or foreign commerce, or uses or causes another (including the intended victim) to use the mail or any facility in interstate or foreign commerce, with intent that a murder be committed in violation of the laws of any State or the United States as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value, shall be fined not more than $10,000 or imprisoned not more than $20,000 and imprisoned for not more than twenty years, or both; and if death results, shall be subject to imprisonment for any term of years or for life, or shall be fined not more than $50,000 or both. 18 U.S.C. § 1958 (1984 & Supp.1990) (as amended and renumbered, 1988). Section 2E1.4 of the Sentencing Guidelines specifically sets forth the base offense level for 18 U.S.C. § 1958, Use of Interstate Commerce Facilities in the Commission of Murder-For-Hire, the crime for which the jury convicted defendants in Count I of the indictment. That section counsels the court to .apply the greater of level 23 or “the offense level applicable to the underlying unlawful conduct.” United States Sentencing Commission, Guidelines Manual, § 2E1.4 (Nov. 1989). The application notes to § 2E1.4 also enumerate that “[i]f the underlying conduct violates state law, the offense level corresponding to the most analogous federal offense is to be used.” U.S.S.G. § 2E1.4 application note 1. The application note does not intimate that the court should not consider murder as contained in the federal murder statute as constituting underlying unlawful conduct, however. Application note one applies if the underlying conduct violates state law; it does not prevent the court from looking to federal law to define the underlying unlawful conduct where the conduct also violates federal law. The court will examine both the federal and state murder statutes to determine whether they encompass defendants’ conduct; if either or both of those statutes do define defendants’ underlying unlawful conduct, then the court must apply the sentencing guideline base offense level for the federal murder statute, 18 U.S.C. § 1111, to defendants. I. FEDERAL MURDER STATUTE The underlying unlawful conduct here violates the federal murder statute, 18 U.S.C. § 1111 (1984 & Supp.1990). That section, in pertinent part, defines first degree murder as “the unlawful killing of a human being with malice aforethought ... [and] perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed ...” 18 U.S.C. § 1111 (1984 & Supp.1990). The facts of this case satisfy this definition: they jury found that defendants premeditatedly designed to kill Nelson Seda, and Brian Williams was in fact killed. The base offense level for 18 U.S.C. § 1111 is set by the Guidelines as 43. U.S.S.G. § 2A1.1. Therefore, the court should apply this base offense level to defendants in this case as murder constitutes the underlying unlawful conduct of the offense for which they were convicted. Defendants object, however, on grounds of double jeopardy and collateral estoppel. The court will address those objections below in Parts III and IV, after it examines whether state law also encompasses defendants’ underlying unlawful conduct. II. FLORIDA STATE MURDER STATUTE In addition to contravening the federal murder statute, defendants’ underlying conduct violates Florida law. Therefore defendants’ base offense level should be calculated with regard to the federal offense most analogous to that state law, 18 U.S.C. § 1111, in accord with § 2E1.4 application note 1. The Government advances that Florida Statutes § 782.04, which defines situations giving rise to first-degree murder and felony murder, applies to the facts and circumstances of this case. That statute defines first-degree murder as “[t]he unlawful killing of a human being: 1. When perpetrated from a premeditated design to effect the death of the person killed or any human being; or 2. When committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any: ... (j) unlawful throwing, placing, or discharging of a destructive device or bomb ...” Fla.Stat. § 782.04 (1989). Defendants make several objections to § 782.04 as irrelevant to their case; they first specifically argue that Brian Williams’ death was not "unlawful.” “Unlawful” death occurs, according to Florida law, when defendant does not seek to exculpate himself or justify his crime, as the Florida Statutes define those defenses. For instance, the Florida Supreme Court has held that “because murder constitutes the unlawful killing of a human being, the court’s failure to explain that excusable and justifiable homicide were lawful killings rendered the [jury] instruction fundamentally defective.” Banda v. State, 536 So.2d 221, 223 (Fla.1988) (emphasis in original). The term unlawful appears in the murder statute to allow for operation of affirmative defenses of exculpation or justification. Because defendants do not present any affirmative defenses of exculpation or justification, their contention that Brian Williams’ death was “lawful” is incorrect. Defendants further object that their conduct does not fall under the Florida felony-murder statute as they were not present at the scene of the killing, and that the victim died by his own hand. In State v. Dene, 533 So.2d 265, 270 (1988), the Florida Supreme Court held that a principal in the first degree was guilty of first-degree felony-murder committed by her co-felons although the principal was not present at the scene of the crime. Because defendants here qualify as principals in the first degree for commission of the felony, see G. C. v. State, 407 So.2d 639, 640 (Fla.App. 3d Dist.1981), any death which results from that felony constitutes felony-murder for which a court may hold defendants liable. The conduct of which the jury adjudged defendants guilty under the federal murder-for-hire statute also satisfies that portion of the Florida murder statute which proscribes premeditated murder. As stated above, Florida Statutes § 782.04 (1989) punishes as first-degree premeditated murder “[t]he unlawful killing of a human being: 1. When perpetrated from a premeditated design to effect the death of the person killed or any human being ...” Fla.Stat. § 782.04 (1989). First, Brian Williams’ death was unlawful. (See discussion above.) Second, the jury found that defendants in this case intended to kill Nelson Seda. These two elements taken together with the facts of this case establish that defendants’ conduct falls under the Florida first-degree premeditated murder statute. Finally, defendants’ double jeopardy and collateral estoppel objections carry no more force for violations of state than for those of federal law (see discussion below in Parts III and IV). III. DOUBLE JEOPARDY Double jeopardy bars the subsequent prosecution of the same offensive conduct by the same sovereign. See Heath v. Alabama, 474 U.S. 82, 87, 106 S.Ct. 433, 436, 88 L.Ed.2d 387 (1985). The dual sovereignty doctrine, however, allows successive prosecutions by two sovereigns for the same conduct. Id. The underlying premise of the doctrine stems from the idea that “[w]hen a defendant in a single act violates the ‘peace and dignity’ of two sovereigns by breaking the laws of each, he has com mitted two distinct ‘offenses.’ ” Id. (quoting United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 142, 67 L.Ed. 314 (1922)). The Supreme Court has held that “the crucial determination [is] whether the two entities that seek successively to prosecute a defendant for the same course of conduct can be termed separate sovereigns.” Id. While the Supreme Court once held that Puerto Rico does not constitute a distinct sovereign for double jeopardy purposes, People of Puerto Rico v. Shell, 302 U.S. 253, 58 S.Ct. 167, 82 L.Ed. 235 (1937), that decision took place prior to passage of the Puerto Rican Federal Relations Act, Pub.L. No. 600, 64 Stat. 319 (1950) (the “Act”), the statute that established Puerto Rico as a Commonwealth rather than a territory. The operation of the Act serves to override the Court’s holding in Shell. For instance, the First Circuit specifically addressed whether double jeopardy applies to criminal cases brought in the Commonwealth of Puerto Rico. U.S. v. Lopez Andino, 831 F.2d 1164 (1st Cir.1987), cert. denied, 486 U.S. 1034, 108 S.Ct. 2018, 100 L.Ed.2d 605 (1988). The court there held that Puerto Rico is like a state for double jeopardy purposes because of the operation of the Act which established Puerto Rico as a Commonwealth. See id. The court adopts the reasoning of the First Circuit in Lopez Andino and holds that Puerto Rico is a distinct sovereign for double jeopardy analysis. Cf. Cordova & Simonpietri Ins. v. Chase Manhattan Bank, 649 F.2d 36 (1st Cir.1981). Double jeopardy does not apply in this case because Puerto Rico and the federal government or Puerto Rico and the State of Florida may each prosecute the offensive conduct of which the jury found defendants guilty in this case. Defendants intended to kill and put the killing instrument into commerce in Florida. Florida could prosecute this conduct under its homicide statute. See Fla.Stat. § 782.04; Lane v. State, 388 So.2d 1022 (Fla.1980). Moreover, the federal government may prosecute the offensive conduct under the federal murder-for-hire statute. See 18 U.S.C. § 1958 (1984 & Supp.1990). Therefore, double jeopardy neither bars the federal prosecution of these defendants, nor any sentencing analogy drawn to the federal murder statute, 18 U.S.C. § 1111, nor the sentencing analogy drawn to the Florida homicide statute, Florida Statutes § 782.04 (1989). IV. COLLATERAL ESTOPPEL To apply collateral estoppel to these defendants, this trial must involve the same parties as were involved in the Commonwealth of Puerto Rico trial. See Standefer v. U.S., 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980). .Because the court holds that the Commonwealth of Puerto Rico and the United States and/or the State of Florida constitute distinct sovereigns, collateral estoppel does not apply in this case. V. CONCLUSION Defendants’ conduct may be punished by Florida law as first-degree murder, therefore the court may look to the analogous federal offense of first-degree murder — 18 U.S.C. § 1111 — to determine defendants’ sentencing guidelines base offense level. Moreover, defendants’ underlying conduct falls directly under 18 U.S.C. § 1111 in accord with the first part of § 2E1.4 of the Guidelines. The base offense level for 18 U.S.C. § 1111 is 43. The court will use 43 as the base offense level for sentencing defendants for their conviction under 18 U.S.C. § 1958. The court rejects defendants’ double jeopardy and collateral estoppel objections. Accordingly, after careful consideration and review, the court ORDERS and ADJUDGES that the base offense level from which the court shall compute defendants’ sentence for their conduct in Count I is 43. DONE and ORDERED.

MEMORANDUM Francisco Rivera-Mata, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order summarily affirming an immigration judge’s (“IJ”) decision pretermitting his application for cancellation of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252. Reviewing for substantial evidence, Ibarra-Flores v. Gonzales, 439 F.3d 614, 618 (9th Cir.2006), we grant the petition for review and remand. After the BIA order in this case, we held in Ibarra-Flores that administrative voluntary departure under threat of deportation breaks the accrual of continuous physical presence only where the alien is informed of the terms of the departure and knowingly and voluntarily accepts them. See id. at 619-20; see also Tapia v. Gonzales, 430 F.3d 997, 1002-04 (9th Cir.2005). The record does not contain substantial evidence that Rivera-Mata was informed of the terms of his departure or that he accepted them knowingly and voluntarily. The agency “should be given the first opportunity to assess the consequences of [Rivera-Mata’s] departure under the ‘knowing and voluntary’ standard.” Ibarra-Flores, 439 F.3d at 620. We therefore grant the petition for review and remand for further proceedings. PETITION FOR REVIEW GRANTED; REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.

PER CURIAM: Pursuant to a plea agreement, Takaria Vashon McCray pled guilty on Décember 13, 2004, to possession with intent to distribute more than five grams of cocaine base (“crack cocaine”), in violation of 21 U.S.C. § 841(a). The Guidelines prescribed a sentence range of 188 to 235 months’ imprisonment, and, after making a downward departure from that range under U.S.S.G. § 5K1.1, the district court sentenced McCray on March 31, 2005, to prison term of 120 months. On July 14, 2008, McCray moved the district court pursuant to 18 U.S.C. § 3582(c) to reduce his sentence based on Amendment 706 to the Guidelines, which provides for the reduction of base offense levels applicable to crack cocaine. The district court denied his motion on the ground that because he was sentenced as a career offender under U.S.S.G. § 4B1.1, Amendment 706 does not lower his base offense level. McCray now appeals the court’s ruling. McCray concedes that our precedent forecloses his argument that the court should have reduced his sentence; he appeals simply to preserve the issue. His concession is well made since our precedent does foreclose his appeal. “Where a retroactively applicable guideline amendment reduces a defendant’s base offense level, but does not alter the sentencing range upon which his or her sentence was based, § 3582(c)(2) does not authorize a reduction in sentence.” United States v. Moore, 541 F.3d 1323 (11th Cir.2008), cert. denied, McFadden v. United States, — U.S.-, 129 S.Ct. 965, 173 L.Ed.2d 156 (2009), and cert. denied, — U.S.-, 129 S.Ct. 1601, 173 L.Ed.2d 689 (2009). Because McCray’s sentencing range was calculated under the career offender provisions of § 4B1.1, rather than the drug quantity table in § 2D1.1, Amendment 706 does not have the effect of lowering McCray’s sentencing range. AFFIRMED.

CURTIS, Circuit Justice. This is an action of debt [against Harrison G. O. Rundlett] on a recognizance. The amended declaration, which is demurred to, shows that one Woodbury Gilman was complained of, before Horace Webster, one of the commissioners appointed by the circuit court of the United States for the district of New Hampshire, and therein was charged with the crime of presenting to the commissioner of pensions certain false and fraudulent papers for the purpose of obtaining an allowance of a claim for a pension, and the payment of a sum of money from the United States in satisfaction of such claim. That the said Gilman was arrested and brought before the commissioner at his office in Portsmouth, on the 30th day of August, 1853, and such proceedings were thereupon had that Gilman was ordered by the commissioner to recognize in the sum of §2,500, with three sureties, in the sum of $833 33-100 each, to be and appear before the commissioner at his office in Portsmouth on the first day of September then next, at ten of the clock in the forenoon,' further to answer to the said complaint, and then and there wait and abide the order of the said commissioner; that the said Gilman and three sureties, of whom the defendant was one, did so recognize. That Gilman did not appear at the office of the commissioner on the first day of said September, at ten of the clock in the forenoon, according to the tenor of his recognizance; and the commissioner adjourned to the court house in Portsmouth, at the same hour, and then and there Gilman was three times solemnly called, and made default, and the sureties were also then .and there three times solemnly called to bring in the body of their principal, but did not appear, or bring the principal, and so default was made in the condition of the recognizance, and the same was declared by the commissioner to be forfeited; all which will appear by the record, &c. Several questions have been argued upon the demurrer. The first is, whether the commissioner had authority to take the recognizance of a defendant, with surety, to appear before himself. It is argued that the powers of a commissioner, in this particular, are the same as those of a justice of the peace; that ’ at common law, a justice of the peace cannot order a prisoner tq recognize to appear before himself; that though there is, by statute in New Hampshire, as in other states, authority conferred on justices of the peace to let to- bail persons accused before them, while the complaint is pending, and no order has been made thereon, there is no act of congress which confers this power on commissioners. By the first section of the act of August 23, 1842 (5 Stat. 516), it is provided, ■that the commissioners shall exercise all the powers that any justice of the peace, or other magistrate of any of the United States may now exercise, in respect to offenders for any crime or offence against the United States, by arresting, imprisoning, or bailing the same, under and by virtue of the thirty-third section of the act of September 24, 1789 (5 Stat. 91). To that section we must look for the powers of the commissioners over this subject; and it provides that, for any crime or offence against the United -States, the offender may, by any justice or judge of the United States, or by any justice of the peace, or other magistrate of any of the United States where he may be found, agreeably to the usual mode of' process against offenders in such state, be arrested and imprisoned or bailed, as the case may be, for trial befors such court of the United States, &c. My opinion is, that it was the intention of congress by these words, “agreeably to the usual mode of process against offenders in such state,” to assimilate all the proceedings for holding accused persons to answer before a court of the United States, to the proceedings had for similar purposes by the laws of the state where the proceedings should take place; and, as a necessary consequence, that the commissioners have power to order a recognizance to be given to appear before them, in those states where justices of the peace, or other examining magistrates, acting under the laws of the state, have such power; as they have in New Hampshire, by the Revised Statutes (page 564, § 8). It is, perhaps, admissible, to consider the taking of a recognizance, to be strictly, and literally, within the meaning of the word “process.” See Beers v. Houghton, 9 Pet. [34 U. S.] 329; U. S. v. Knight, 14 Pet [39 U. S.] 301. But if not so, I consider the words “mode of process,” as used in this law, to he synonymous with mode of proceeding, and to include power to let to bail. This must be so, because the law expressly says, the prisoner is not only to be arrested and imprisoned, but bailed, agreeably to the usual mode of process in the state; and though this refers to his being bailed to appear and answer before the court, it shows that the words “mode of process” were not confined to the form of the warrant or mittimus, but were used in the larger sense above mentioned. See Duncan v. Darst, 1 How. [42 U. S.] 306, and cases there cited; and Gwin v. Breedlove, 2 How. [43 U. S.] 29. This objection must therefore be overruled. The next objection is more formidable, it is that the condition of the recognizance required the principal to appear at the office of the commissioner at ten o’clock; that the legal effect of this was, that he had until eleven o’clock to appear; that he was not bound to appear at any other place; that the recognizance could not be forfeited, without calling him at the commissioner’s office, and entering his default for non-appearance there; that the adjournment to the court house, at ten o’clock, did not impose on the accused a duty to follow the commissioner, and make his appearance there before eleven o’clock; and, consequently, when he failed to answer the call at the court house, he was not thereby in default, and so there was no forfeiture. To maintain an action on a recognizance, the declaration must show a breach, of its condition. And as the . recognizance is required and taken by the commissioner pursuant to an authority conferred on him by law, and to satisfy certain legal requirements, the nature, extent, and limitations of the responsibility created thereby, are to be determined, not by a mere examination of the terms of the instrument, but also by reference to the rules of law which are applicable thereto. These rules apply themselves to the terms of the condition, and affect their meaning and operation. Beers v. Houghton, 9 Pet. [34 U. S.] 329; U. S. v. Knight, 14 Pet. [39 U. S.] 301. One of these rules of law requires the principal cognizor to be called, and his default entered; and the legal effect of the condition is such, that it is not broken by non-appearance, generally, to be proved by any evidence, but only by non-appearance in answer to a call, to be proved by an entry made on the minutes of the magistrate, and returned by him as part of the proceedings. This has been decided in New Hampshire, and elsewhere, upon reasons, which, to me, are satisfactory. State v. Chesley, 4 N. H. 366; Dillingham v. U. S. [Case No. 3,913]; State v. Grigsby, 3 Yerg. 280; White v. State, 5 Yerg. 183; Park v. State, 4 Ga. 329. It is clear also that the declaration must show a default to answer to a call, made at a time and place, when and where the cognizor was bound by law to answer. And the question here is, whether Gilman was bound by law to answer the call made at the court- house. By the terms of the recognizance, he was to appear at the office of the commissioner, at the hour of ten o’clock in the forenoon, and then and there further answer to the complaint, and wait and abide the order of the said commissioner. Any lawful order which the commissioner was empowered to pass in the course of proceedings upon this complaint, is within the very terms of the condition. If he had appeared, and the hearing had not been finished on that day, and the commissioner had adjourned the hearing to the next day, the defendant would undoubtedly have been bound by the recognizance to appear on the next day. The commissioner also had power to make an order to adjourn to a more convenient place, for the purpose of hearing the complaint This power is incident to the power to hear and determine. It includes adjournments both of time and place. Where, as in some of the states, the power is regulated by statute, of course those statute limits must be observed. Where it has not been thus regulated, it must be a reasonable exercise of the power, in reference to the circumstances of the case, for the purpose of more conveniently, or speedily, or safely, discharging the duty of examining the complaint Morrell v. Near, 1 Cow. 112; Caswell v. Ward, 2 Doug. (Mich.) 374. In this case no objection is made to the mode of exercising this power, save that the order to adjourn was made in the absence of the defendant, and before he was bound to be present That the order to adjourn was made in his absence, is averred by the amended declaration. That it was made at ten o’clock in the forenoon is also averred. I do not think he was bound to be present before, or precisely at ten o’clock. I have always understood it to be part of the common law of the New England states, and I believe it is so held in other states, that in proceedings before magistrates, which are notified to begin at a fixed hour, neither party is in default, until the expiration of that hour and the commencement of the next. This is a convenient rule, prevents surprise, and exacts as much promptness as is safe and reasonable. It seems quite clear from the case of Downer v. Hollister, 14 N. H. 122, that it is part of the law of this state. Under these circumstances I am of opinion the commissioner had not lawful authority to make the order to adjourn, that the order was not binding on the defendant, so as to oblige him to answer at the court house, and consequently that his failure to answer there was not a breach of the condition of the recognizance,—and this for the following reasons: The general rule is. that in criminal proceedings, no action affecting any right of the accused should take place in his absence. In this particular case it might be of no importance to the defendant whether the adjournment took place in his absence or not. In many cases it might be of practical importance. I cannot consent to make a precedent, which might be used injuriously to the substantial rights of persons examined for offences by magistrates. When they have bound themselves to appear before a magistrate and answer to a complaint at a particular place, they must be allowed an opportunity to appear there, and offer such reasons as they may have, why they should not be compelled to answer elsewhere; and those reasons must be considered by the magistrate, before they are required to answer at another place. As has already been said, the power to adjourn is incident to the power to hear and determine. But if the defendant avoids, there is no hearing or determination. Until he appears, therefore, there is no power to hear and determine, and consequently, a power to adjourn, which is merely incidental to the power to hear, and which is to be exercised, if at all, only for the more convenient, safe, or speedy execution of the principal power, not only need not be exerted, but can hardly be said to exist. If the defendant had been in any default, for not being present at the time the order to adjourn was made, it might be urged, perhaps, that he was bound to take notice of the adjournment, and to follow the commissioner to the court house. Adjournments by courts of record thus bind persons who are under recognizance. But, as has already been declared, his appearance at any time before eleven o’clock, at the office of the commissioner, would satisfy the condition of the recognizance; and I can make no distinction between an order of the commissioner to adjourn at ten o’clock, before he appeared, and an order at nine o’clock, or any earlier hour. In neither ease, was the defendant bound to be present, or in default for not being present; and I do not perceive upon what ground he could be required to take notice of and obey the order of adjournment in one case, ratner than in the other. Several cases in the state of New York have been decided upon principles somewhat analogous to those above stated: Wiest v. Critsinger, 4 Johns. 117; Stewart v. Meigs, 12 Johns. 417; Morrell v. Near, 1 Cow. 112. It was stated at the bar that Gilman, the defendant, actually absconded, and had no intention to appear, and did not, nor would, at any time or place, appear to a rawer the complaint; that this was well known to his sureties, and that it was of no practical importance to him or them whether the adjournment took place or not. This may be so; but the case must be decided upon fixed principles of law, applicable to all cases of such recognizances taken by magistrates, and whatever the intentions or acts of Gilman may have been, if there was no breach of the condition of the recognizance, no recovery can be had. Being of opinion that there was no breach, the judgment must be for the defendant.

PER CURIAM: Lee Andre Turner appeals his 48-month sentence for possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Turner argues the district court failed to identify and explain its specific reasons for sentencing him above the guidelines range. “We review the final sentence imposed by the district court for reasonableness.” United States v. Agbai, 497 F.3d 1226, 1229 (11th Cir.2007). This review is conducted using the “deferential abuse-of-discretion standard,” regardless of whether the defendant’s sentence is inside or outside of the guideline sentencing range. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007). The district court must impose a sentence that is both procedurally and substantively reasonable. Id. at 597. Turner does not challenge his sentence’s substantive reasonableness; rather, he argues the court failed to sufficiently explain why it imposed the upward variance. A sentence is procedurally unreasonable if the district court, inter alia, failed to adequately explain its reasoning. Id. Although a district court must consider the sentencing factors set forth in § 3553(a), it is not required to explicitly state it has considered each factor or to discuss each factor, but should explain why a variance has been imposed. United States v. Pugh, 515 F.3d 1179, 1191 n. 8 (11th Cir.2008). The § 3553(a) factors a district court must consider include: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (3) the need for deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed educational or vocational training or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted sentencing disparities; and (10) the need to provide restitution to victims. United States v. Talley, 431 F.3d 784, 786 (11th Cir.2005) (citing 18 U.S.C. § 3553(a)). In explaining its reasons for the sentence, the district court “must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” Gall, 128 S.Ct. at 597. If the district court “decides that an outside-Guidelines sentence is warranted, he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” Id. At Turner’s sentencing hearing, the court stated it had considered the § 3553(a) factors in determining the length of a reasonable sentence. In fact, the district court went further, explaining that the upper limit of Turner’s guideline sentencing range was not severe enough to adequately punish Turner’s past criminal conduct and deter him from committing future crimes. The court noted the serious nature of Turner’s criminal history, and was particularly concerned about the crimes he committed shortly after serving a prison sentence for first degree attempted assault and second degree assault. The court’s discussion clearly indicates it imposed the upward variance based on the nature and circumstances of Turner’s offense, Turner’s violent history, the need to reflect the seriousness of the firearm offense and provide just punishment, and the need for deterrence. Although the district court did not specifically list and discuss each of the § 3553(a) factors, it was not required to do so, and the record indicates the court considered the parties’ arguments as well as the guideline range and the § 3553(a) factors and explained its reasons for varying upward from the guideline range. This is all that is required. See Gall, 128 S.Ct. at 597; Pugh, 515 F.3d at 1191 n. 8. Because the district court adequately explained its reasoning, it did not abuse its discretion in varying upward from Turner’s guideline sentencing range. Accordingly, we affirm Turner’s sentence. AFFIRMED.

PER CURIAM: Robbie Lynn Newby, Texas prisoner # 1238216, appeals the dismissal as frivolous and for failure to state a claim of his pro se civil rights complaint, which raises First and Fourteenth Amendment claims under 42 U.S.C. § 1983, and claims under the Religious Land Use and Institutionalized Persons Act (RLUIPA). Newby’s § 1983 and RLUIPA claims arise from his desire to practice the Buddhist faith while incarcerated in the Texas Department of Criminal Justice-Institutions Division’s (TDCJ-ID’s) Roach Unit. For the following reasons, we affirm in part, vacate in part, and remand for further proceedings consistent with this opinion. I. Factual and Procedural Background Newby filed an amended complaint against Doug Dretke, the Director of the TDCJ-ID; Bill Pierce, the Director of Chaplaincy at the TDCJ-ID; E. Williams, the Warden at the Roach Unit; and John Nino, the Chaplain at the Roach Unit, asserting violations of his First and Fourteenth Amendment rights and his rights under RLUIPA. Newby’s amended complaint contains the following allegations: The defendants place impermissible burdens on Buddhist adherents at the Roach Unit by denying Buddhists the right to (1) have meetings under the same conditions as similarly situated religious groups; (2) have weekly worship time without an approved volunteer; (3) equal consideration concerning fair access to facilities for purposes of conducting religious activities; and (4) wear Buddhist “malas,” or prayer beads, under the same conditions as Christians are allowed to wear crucifixes. Newby alleges that outside volunteers are unavailable to hold Buddhist meetings for the Roach Unit and, as a Buddhist, it is essential for him to meet regularly with other Buddhists. He contends that outside volunteers have applied to lead Buddhist meetings for the inmates; however, they “encountered mysterious red-tape” and were never approved. Newby alleges that Buddhists are not afforded the same privileges as similarly-situated adherents of other religions, insofar as Christian activities are overseen by a state-sponsored leader, Chaplain Nino, and Muslims are allowed to meet three times a week without an outside volunteer. He further asserts that his Buddhist practices require that he have his prayer beads in contact with his body at all times; however, prison policy requires that he not wear them outside of his cell. Newby seeks declaratory and injunctive relief against the defendants in their official capacity and punitive damages, or any other damages available, against the defendants in their individual capacities. After Newby filed his initial complaint, which did not include a claim under RLUI-PA, the district court ordered the State Attorney General to investigate Newby’s claims and submit a report to the court pursuant to Martinez v. Aaron, 570 F.2d 317 (10th Cir.1978). The Martinez report related the following: Of the 1,335 inmates on the Roach Unit, there were approximately twenty Buddhists, and of this twenty, ten to fifteen regularly sought to be excused from work and other activities to observe state-designated Buddhist holidays. According to prison regulations, religious services must be conducted “by ei-' ther a chaplain or an approved religious volunteer.” “Because of security and safety concerns, [inmates] may not lead religious sendees. There is potential danger in sanctioning a system in which certain inmates hold persuasive power over others.” Muslim inmates are exempt from the outside-volunteer policy pursuant to a consent decree in Brown v. Beto. There is “a total lack of approved Buddhist volunteers.” “If the Chaplaincy Department at the Roach Unit was to be contacted by a volunteer that wished to lead Buddhist education and worship, arrangements could be made to hold Buddhist religious ceremonies.” “The lack of approved volunteers is the only reason that Buddhist group ceremonies cannot currently be held.” Because of the lack of Buddhist volunteers, Chaplain Nino arranged for Newby “to have a private, tape assisted, meditation session on a weekly basis.” Additionally, Buddhists are permitted to have lay-in days, in-cell prayer and meditation, certain religious objects, and a Buddhist book section in the spiritual library in the chapel. Newby responded to the Martinez report, raising several objections. Newby contested the number of Buddhist inmates on the Roach Unit, stating that there were twenty Buddhists in his building alone, and there were four other buildings in his unit. He further disputed the report’s statement that the prison library contained a Buddhist book section, stating that “there [was] no and never ha[d] been any Buddhist section in the chapel library.” Newby also disputed the “accommodations” he was purportedly provided, stating that his weekly tape-assisted sessions were an academic pursuit, not devotional, for the purpose of his obtaining a diploma as a Dharma teacher. Finally, he challenged as discriminatory Chaplin Nino’s overseeing Christian basketball, volleyball, band, and choir at the expense of his being able to supervise a Buddhist meeting, specifically referencing Nino’s affidavit testimony that his duties of overseeing the needs of the entire inmate population prevented him from personally being able to lead a regular Buddhist ceremony. After reviewing the record, the magistrate judge (MJ) recommended that New-by’s complaint be dismissed as frivolous and for failure to state a claim. See 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c)(l). In regard to Newby’s First Amendment Free Exercise claims, the MJ determined that (1) to the extent Newby was challenging the application of certain prison regulations, those regulations satisfied the requirements of Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), and were reasonably related to a legitimate penological interest, and (2) Newby failed to allege “that the defendants have denied or restricted his right to practice Buddhism in his cell, that he has been denied alternative means of exercising his religion, or that there is some obvious regulatory alternative that would fully accommodate his claimed rights without imposing a greater than de minimis cost to the prison’s valid penological goals of security, discipline, and operating within space, budget and time restraints, all while executing a neutral policy.” As for Newby’s Fourteenth Amendment claims, he claimed that Muslim services were supervised by a single guard and that Buddhist services should be allowed to take place under similar circumstances. The MJ stated that an exception is made as to Muslims pursuant to a consent decree in Brown v. Beto, and Newby had not shown how the consent decree conferred any rights to him or “how an additional exception for Buddhists would be only a de minimis cost to the valid penological interests underlying the regulations.” The MJ further determined that Newby failed to show “purposeful discrimination resulting in a discriminatory effect among persons similarly situated.” With regard to his prayer beads, the MJ noted that prison policy allowed inmates to possess rosaries; however, it mandated that they not be worn as necklaces. The MJ added that since rosaries were a species of prayer beads, the requirement that they all be dyed black appeared to be a neutral regulation. Lastly, the MJ recommended the dismissal of Newby’s RLUIPA claim. New-by claimed that he was prevented from worshiping with other Buddhists unless an outside volunteer was available to conduct the meeting. The MJ determined that “[t]he requirement of an outside volunteer, which is a uniform requirement for congregate religious services except Muslims, did not place a substantial burden on [New-by’s] religious exercise.” Newby filed objections to the MJ’s recommendations, which the district court denied. The district court adopted the MJ’s report and dismissed Newby’s complaint as frivolous and for failure to state a claim. Newby then filed a motion to alter the district court’s judgment, which the district court denied. Newby filed a timely notice of appeal and a motion to proceed in forma pauperis (IFP) on appeal. The district court granted Newby permission to proceed IFP on appeal. II. Analysis A. Standard of Review An IFP complaint may be dismissed as frivolous if it has no arguable basis in law or fact. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.1997); 28 U.S.C. § 1915(e)(2)(B)(i). The dismissal of a complaint as frivolous pursuant to § 1915(e)(2)(B)(i) is reviewed for abuse of discretion. See Harper v. Showers, 174 F.3d 716, 718 & n. 3 (5th Cir.1999). However, dismissals for failure to state a claim under 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A, and 42 U.S.C. § 1997e(c)(l) are reviewed de novo, using the same standard of review applicable to Fed.R.Civ.P. 12(b)(6) dismissals. Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir.2005); Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir.1999). Because the district court dismissed Newby’s claims pursuant to both subsections, review should be de novo. See Geiger, 404 F.3d at 373 (reviewing dismissal of complaint de novo where both standards of review were applicable). To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 555-56, 127 S.Ct. 1955 (internal quotation marks, citations, and footnote omitted). B. RLUIPA 1. Legal Standard Newby argues that the complete absence of Buddhist meetings, the ban on carrying malas or wearing them under his clothes, and the requirement that his ma-las be dyed black all place a substantial burden on his exercise of religion because both communal meetings and wearing ma-las are essential to the practice of Buddhism. Under RLUIPA, No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution ... even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person— (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. § 2000cc-l(a). “The term ‘religious exercise’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” Id. § 2000cc-5(7)(A); see Adkins v. Kaspar, 393 F.3d 559, 567-68 & nn. 33-34 (5th Cir.2004). The plaintiff bears the burden to show that the challenged government action imposes a “ ‘substantial burden’ on his religious exercise.” Adkins, 393 F.3d at 567. “[A] government action or regulation creates a ‘substantial burden’ on a religious exercise if it truly pressures the adherent to significantly modify his religious behavior and significantly violate[s] his religious beliefs.” Id. at 570. “[T]he effect of a government action or regulation is significant when it either (1) influences the adherent to act in a way that violates his religious beliefs, or (2) forces the adherent to choose between, on the one hand, enjoying some generally available, non-trivial benefit, and, on the other hand, following his religious beliefs.” Id. In applying this test, courts conduct a “case by case, fact-specific inquiry.” Id. at 571. 2. Outside Volunteer Claim a. Substantial Burden Newby argues that the district court erred in dismissing his RLUIPA claim because the TDCJ-ID’s outside-volunteer policy imposes a substantial burden on his right to practice Buddhism. In Mayfield v. Texas Dep’t of Criminal Justice, 529 F.3d 599, 614-15 (5th Cir.2008), we held that the availability of an outside volunteer only once every eighteen months provided a reasonable basis for a factfinder to conclude that the application of the TDCJ-ID’s outside-volunteer policy imposed a substantial burden on Mayfield’s right to exercise his religion in violation of RLUIPA. In making this determination, we noted the lack of evidence that a volunteer would become available in the future to reduce the burden on Mayfield’s ability to worship. Id. Newby has alleged that the TDCJ-ID’s outside-volunteer policy has precluded members of the Buddhist faith on the Roach Unit from meeting, and the Martinez report corroborates that there is a total lack of approved Buddhist volunteers to conduct meetings. These facts suggest that the burden on Newby is greater than that of the inmate in May-field. In Sossamon v. Lone Star State of Texas, 560 F.3d 316 (5th Cir.2009), we held that TDCJ-ID’s complete ban on worship in the Robertson Unit’s chapel provided a reasonable basis for a factfinder to conclude that the application of the TDCJID’s chapel-use policy imposed a substantial burden on Sossamon’s right to exercise his religion in violation of RLUIPA. Id. at 332-34. Sossamon claimed that worship before an altar and cross in a chapel with Christian symbols and furnishings was important to his free exercise. Id. at 321. Similarly, Newby claims that it is essential for him to meet with other Buddhists and participate in communal services. Although Chaplain Nino’s affidavit states that “Buddhism does not rely heavily on services requiring worshipers to congregate,” his understanding “is irrelevant except to the extent that it might call into question [Newby’s] good faith, which it does not purport to do.” Id. at 332. Chaplain Nino states that he provides alternative accommodations for the Buddhist prisoners, but the existence and efficacy of these accommodations is hotly contested. See Mayfield, 529 F.3d at 614-15 (“An inability to exercise other means of Odinist worship increases the relative burden imposed by the TDCJ’s policy preventing group meetings in the absence of an outside volunteer.”). For purposes of the “substantial burden” prong of the RLUI-PA inquiry, these alternative accommodations do not alter “the fact that the rituals which [Newby] claims are important to him—without apparent contradiction—are now completely forbidden by Texas.” Sos-samon, 560 F.3d at 333 (emphasis in original). Based on Mayfield and Sossamon, there is a reasonable basis for a factfinder to conclude that the outside-volunteer policy creates a substantial burden on New-by’s free exercise. b. Least Restrictive Means Having determined that there is a reasonable basis for a factfinder to conclude that the outside-volunteer policy substantially burdens Newby’s free exercise, we must still evaluate whether that policy is the least restrictive means of furthering a compelling governmental interest. See 42 U.S.C. § 2000cc-l(a). If it is, then Newby’s RLUIPA claim must fail. Chaplain Nino opines that an outside volunteer is required for security and safety concerns. If inmates are allowed to lead religious services, they might exert undue influence over other adherents and might not have adequate knowledge of the religious tenets of a particular faith. “Texas obviously has compelling governmental interests in the security and reasonably economical operation of its prisons,” see Sossamon, 560 F.3d at 334, but there is a reasonable basis for a factfinder to conclude that Texas has not furthered those interests through the least restrictive means possible. If a policy of general applicability imposes a substantial burden on an inmate’s free exercise, we evaluate whether the policy is the “least restrictive means of furthering [a] compelling governmental interest” by examining the particular facts of the case. The outside-volunteer policy provides that religious services in the Roach Unit need to be conducted by either a chaplain or an approved religious volunteer. However, there are no approved religious volunteers to conduct Buddhist ceremonies, and Chaplain Nino refuses to conduct Buddhist ceremonies because he is unfamiliar with Buddhist religious practices and is occupied by his other chaplaincy obligations. At a result, Buddhists are completely unable to engage in communal worship. At this stage of the litigation, we cannot see “why many of the security concerns voiced by Texas cannot be met by using less restrictive means, even taking into account cost.” See Sossamon, 560 F.3d at 335. For instance, Chaplain Nino or other prison staff could supervise, rather than conduct, Buddhist ceremonies, thus ensuring that no inmate exerts undue influence over his peers. See id. (identifying alternative arrangements that would address the legitimate security concerns raised by the prison while imposing a lesser burden on the inmate’s free exercise). Newby alleges that “numerous Buddhist clergy [have] offered remote supervision, audio/video tapes, and consultation for Chaplain Nino,” who through exercise of his supervisory authority could ensure that any communal worship is consistent with the tenets of the Buddhist faith. While Buddhists might not be entitled to the benefits of the consent decree in Brown v. Beto, the fact that Muslims regularly engage in communal worship without an approved religious volunteer is some evidence that the security and safety concerns identified by Texas can be addressed through less restrictive alternatives. The feasibility of these alternatives and others can be explored on remand. Newby also alleges that Chaplain Nino is targeting Buddhists through the disparate application of TDCJ-ID’s outside-volunteer policy. According to Newby, (1) Muslims may hold services without an approved religious volunteer, but Buddhists may not; and (2) Chaplain Nino conducts or supervises a variety of Christian activities, but not Buddhist activities. Newby alleges that TDCJ-ID does not allow him to meet with other Buddhists under the same conditions as these “god-based groups.” These allegations of disparate application might provide a reasonable basis for a factfinder to conclude that the outside-volunteer policy is not the least restrictive means of furthering a compelling governmental interest. See id. at 334 (noting that “the chapel can be and is safely used for other kinds of prisoner gatherings, such as weekend-long marriage training sessions (with outside visitors), sex education, and parties for GED graduates.”); Mayfield, 529 F.3d at 615 (“The unresolved factual issues regarding the TDCJ’s neutral application of the policy call into question whether the TDCJ’s application of its policy to the Odinists is narrowly tailored to the TDCJ’s asserted interests.”). Consequently, we vacate the dismissal of Newby’s RLUIPA claim as to the outside-volunteer policy. 3. Prayer Beads Claim The district court did not evaluate under RLUIPA whether the TDCJ-ID’s restrictions on wearing prayer beads imposed a substantial burden on Newby’s religious practice; it addressed that issue with regard only to his First and Fourteenth Amendment claims. “[T]he RLUIPA standard poses a far greater challenge than does Turner to prison regulations that impinge on inmates’ free exercise of religion.” Freeman v. Tex. Dep’t of Criminal Justice, 369 F.3d 854, 857 n. 1 (5th Cir.2004). Because the district court’s evaluation of the prayer beads issue under the First and Fourteenth Amendments is not dispositive for purposes of determining whether Newby has stated a RLUIPA claim, it should address that issue on remand. C. Constitutional Claims 1. First Amendment Claims a. Establishment Clause With regard to his First Amendment issues, Newby first argues that the district court failed to address his Establishment Clause claim. The record discloses, however, that the district court did address that claim, and Newby has not assigned error to or briefed the specific reason for its dismissal. He has therefore forfeited its review. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.1987). We affirm the dismissal of Newby’s Establishment Clause claim. b. Free Exercise Clause Newby also raises a First Amendment Free Exercise claim, and, on appeal, argues that the TDCJ-ID failed to provide him with alternative means of exercising his religious rights in spite of the outside-volunteer policy. In Turner, 482 U.S. at 90, 107 S.Ct. 2254, the Supreme Court stated that one of several factors relevant to determining the reasonableness of prison policy or actions by prison officials is whether there are alternative means of exercising the rights that remain open to the inmates. In assessing the availability of alternative means, “the pertinent question is not whether the inmates have been denied specific religious accommodations, but whether, more broadly, the prison affords the inmates opportunities to exercise their faith.” Adkins, 393 F.3d at 564 (internal quotation marks and citation omitted). Newby has alleged that Buddhist inmates on the Roach Unit have been totally unable to congregate due to a lack of outside volunteers and have no access to religious materials from the unit’s library. As such, the facts of his case differ from previous cases in which we have held that the prisoner had access to alternative means of worship. See Mayfield, 529 F.3d at 609-10; Adkins, 393 F.3d at 564. New-by has alleged facts that could lead a factfinder to conclude that the TDCJ-ID has failed to provide him with alternative means of practicing his Buddhist faith and, therefore, that the outside-volunteer policy violates his First Amendment rights. The dismissal of his First Amendment Free Exercise claim is therefore also vacated. 2. Fourteenth Amendment Claim Finally, Newby argues that the TDCJ-ID’s outside-volunteer policy violates the Fourteenth Amendment’s Equal Protection Clause. Insofar as Newby bases his equal protection claim on allegations that Muslim inmates are unfairly exempt from the outside-volunteer policy by virtue of Brown v. Beto, we have rejected a similar argument in Adkins. See 393 F.3d at 566. Newby has therefore failed to state a claim on that basis. Nevertheless, Newby disputes the number of Buddhists on the Roach Unit as represented in the Martinez report and argues that Buddhists are denied equal consideration concerning fair access to facilities to conduct religious activities, despite having numerous adherents on the unit. To the extent that the district court found that any disparate treatment of Buddhists could be overlooked because other religions had far more adherents on the Roach Unit, the record contains no evidence supporting that assumption. Cf. Mayfield, 529 F.3d at 609 (refusing to overlook the existence of material issues of fact regarding whether Odinists and other religious groups were similarly situated based on only unsupported assumptions about the relative size of Odinists compared to other faith groups on the unit). A Martinez report may not be used to resolve material disputed fact findings when they are in conflict with the pleadings or affidavits. Shabazz v. Askins, 980 F.2d 1333, 1334-35 (10th Cir.1992). Consequently, the dismissal of Newby’s equal protection claim is also vacated. AFFIRMED IN PART; VACATED IN PART; REMANDED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . On June 1, 2006, Nathaniel Quarterman succeeded Doug Dretke, the previously named defendant, as Director of the Correctional Institutions Division of the Texas Department of Criminal Justice. Quarterman is substituted as a party. Fed. R.App. P. 43(c)(2). . We recently clarified the remedies available under RLUIPA and § 1983 in prisoner religious exercise cases. See Sossamon v. Lone Star State of Texas, 560 F.3d 316, 326-31, 335 (5th Cir.2009). . According to TDCJ-ID policy, an "approved volunteer” is defined as "[a] person who provides a service or who participates in volunteer activities on a regular basis and has been approved through the application process.” . In his brief, Newby contends that he personally knows thirty-eight Buddhists at the Roach Unit, and "there could be a hundred Buddhists.” . In Adkins, we held that TDCJ-ID's outside-volunteer policy did not substantially burden Adkins's free exercise, see 393 F.3d at 571, but in that case, an outside volunteer was available to oversee Sabbath observances for members of the Yahweh Evangelical Assembly (YEA) once a month. See id. at 562; see also Sossamon, 560 F.3d at 334 ("It is primarily cases in which the small number of available lay volunteers makes religious services less frequent than an adherent would like (but still available on a somewhat regular basis) that a neutrally applied policy does not substantially burden religious exercise.”). . Newby identifies these structured religious activities as “Christian band practice, choir practice, Catholic band practice, praise and worship team practice, Catholic choir, Spanish choir, Spanish bible study, musician practice, Taleem services, Jumah, Muslim coordinators (and even basketball and volleyball tournaments).”

STUART, Senior District Judge. George S. Bartley, Jr. appeals from the District Court’s judgment entered on a jury verdict convicting him of knowingly and intentionally distributing cocaine on or about February 23, 1987, and March 2, 1987, in violation of 21 U.S.C. § 841(a)(1). Bartley contends that the district court erred in three respects: (1) in allowing into evidence testimony concerning the defendant’s possession of a handgun, ammunition, and forty-seven thousand one hundred dollars ($47,100.00) in cash approximately six (6) months prior to these crimes; (2) in failing to accept the jury’s note as a verdict of not guilty or alternatively in failing to specifically respond to the note with an instruction that the government had the burden of proving his quilt beyond a reasonable doubt; and (3) in admitting into evidence a chemist’s analytical report indicating the presence of cocaine prior to an explicit determination by the district court that the witness was qualified to testify as an expert. For the reasons set forth below we affirm the judgment of the district court. I. FACTS Bartley’s conviction stems from two sales of cocaine to Albert Bradford, a confidential informant for the Drug Enforcement Administration (DEA). In February 1987, Bradford contacted Special Agent Larry Melton and advised him that George Simon Bartley, Jr., a/k/a Josh, was willing to sell him five (5) grams of crack cocaine for $600. On February 23, 1987, after being searched, Bradford went with Detective Marcus Harris, Kansas City Missouri Police Department, to 4105 Tracy, Kansas City, Missouri. Only Bradford went inside. He testified that he purchased ten half-gram packages of crack cocaine for $600 from Bartley. The substance was later analyzed to be 1.3 grams of cocaine base. On March 2, 1987, Bradford again contacted DEA and advised them that he could buy five (5) grams of crack cocaine from Bartley. Bradford was again searched, and went with Detective Harris to 1537-39 E. 48th Terrace, Kansas City, Missouri. Only Bradford went inside. He testified that he purchased ten half-gram packages of crack cocaine for $600 from Bartley. The substance was later analyzed to be 1.7 grams of cocaine base. These are the two sales from which Bartley’s convictions arose. Bradford, Melton and Harris all testified for the government at trial. Two additional witnesses testified about prior drug trafficking by Bartley. Leroy Campbell testified that he became acquainted with Bart-ley in April 1986. Over the next few months he observed Bartley selling cocaine and supplying drugs to and picking up money from twelve to fifteen drug houses in Kansas City. Bartley controlled the operation at a number of houses. From one house, sales were alleged to be approximately $7,000 a night. Warren Smith testified that he was recruited by Bartley to sell crack at 3726 Flora. Smith sold crack there for approximately three weeks, then was arrested when the house was raided by the police. A. PRIOR BAD ACT EVIDENCE Defendant George Bartley was the sole defense witness. He denied ever meeting Bradford or Campbell and testified that he knew Smith from Fort Lauderdale where they both had worked as carpenters. Defendant testified that his first trip to Kansas City was in July or August of 1986 and that he stayed for three or four days. He said the next time he came to Kansas City was on December 24 or 25, 1986 and that he stayed one week, until about January 1, 1987. He next was in Kansas City February 26 to 28, 1987, then again from March 20 until his arrest on April 1, 1987. Cross-examination revealed discrepancies in these dates. He admitted on cross-examination that he was in an accident in Kansas City on July 21, 1986, but stated he left Kansas City right after that. He then admitted that he got a speeding ticket in Kansas City on July 19, 1986. The prosecutor then asked appellant if he were present in Kansas City, Missouri, on August 7,1986, and appellant replied: “August 7, 1986 — I can’t remember I guess.” The prosecutor questioned appellant about whether he was a passenger in a car being driven by a man named Roy Pitter on August 7,1986, when said car was pulled over by a highway patrolman. Appellant replied in the affirmative. The prosecutor then asked appellant if ammunition fell out of the glove box in the car when the driver reached in to get the registration out and appellant again replied in the affirmative. Appellant’s counsel then objected to this line of questioning on the basis that it constituted evidence of other crimes. The court overruled the objection. The prosecutor then questioned appellant in detail about the car stop on August 7, 1986, and the subsequent search of the car. Appellant was asked whether the Forty-five Thousand Dollars ($45,000) in cash, packed in boxes in the trunk of the car was his. Appellant replied “yes.” Appellant also admitted to the prosecutor that there was Two Thousand One Hundred Dollars ($2,100) in cash on appellant’s person on August 7, 1986, in addition to that cash in the trunk. The prosecutor then began to ask appellant about a nine millimeter, semi-automatic handgun with a fully loaded clip of ammunition that was packed in Frosted Flakes cereal boxes in the trunk of the car on August 7, 1986. Appellant admitted that the gun and ammunition were his. Appellant’s attorney’s objection to that line of questions was overruled. The prosecutor continued questioning appellant regarding his possessions in the trunk of a car on August 7, 1986, and elicited testimony from appellant that photographs of appellant with guns and money were also in the trunk, as well as the fact that the money in the trunk was folded up into bundles of a thousand dollars. During the instruction conference, appellant’s attorney requested the court to strike from the record the line of questions regarding the incident on August 7, 1986. The court denied the request and later denied defendant’s request for a jury instruction limiting the use of the contested evidence. Appellant argues that the district court erred in admitting and not striking evidence that, six months prior to the dates of the crimes charged in the indictment, defendant was found to be in possession of a nine millimeter semiautomatic handgun and ammunition hidden in Frosted Flakes cereal boxes and $47,000 cash. Bartley's cross-examination testimony concerning the August 7th incident is evidence of prior bad acts and is not admissible to prove that because Bartley was involved in illegal activity in the past, he is guilty of the current charges. See Fed.R. Evid. 404(b) and United States v. Lanier, 838 F.2d 281, 285 (8th Cir.1988) (per cu-riam). The government contends that the evidence is admissible, however, to prove knowledge, intent and/or identity. See Fed.R.Evid. 404(b). Evidence of prior bad acts is admissible (1) when it is relevant to an issue in question other than the character of the defendant, (2) there is clear and convincing evidence that the defendant committed the prior acts, and (3) the potential unfair prejudice does not substantially outweigh the probative value of the evidence. United States v. Galyen, 798 F.2d 331, 332 (8th Cir.1986); Williams v. Mensey, 785 F.2d 631, 638 (8th Cir.1986) (quoting United States v. Gilmore, 730 F.2d 550, 554 (8th Cir.1984); United States v. McDaniel, 773 F.2d 242, 247 (8th Cir.1985). This circuit views Rule 404(b) as a rule generally of inclusion, and a trial court’s broad discretion in admitting wrongful act evidence will not be disturbed unless the defendant can show that the proof in question “clearly had no bearing upon any of the issues involved.” United States v. Estabrook, 774 F.2d 284, 287 (8th Cir.1985). Here, knowledge, intent and identity were material issues because these are essential elements of the crime and the defense was a general denial. Appellant denied that he knew two persons who identified him, specifically putting identity in issue. See United States v. Burkett, 821 F.2d 1306, 1309 (8th Cir.1987) and United States v. Gilmore, 730 F.2d 550, 554 (8th Cir.1984). The proffered evidence was relevant to the issues and related to wrongdoing similar in kind. “Evidence of weapons and of prior offers to sell drugs is relevant to intent to distribute.” United States v. Galyen, supra at 333. See also United States v. Simon, 767 F.2d 524, 527 (8th Cir.1985), cert. denied, 474 U.S. 1013, 106 S.Ct. 545, 88 L.Ed.2d 474 (1985); United States v. LaGuardia, 774 F.2d 317, 320 (8th Cir.1985); United States v. McDaniel, 773 F.2d 242, 247 & n. 4 (8th Cir.1985) and United States v. Jones, 676 F.2d 327, 332 (8th Cir.), cert. denied, 459 U.S. 832, 103 S.Ct. 71, 74 L.Ed.2d 71 (1982). Additionally, evidence concerning the possession of large amounts of currency is admissible where the defendant is charged with a crime in which pecuniary gain is the basic motive. United States v. Wood, 834 F.2d 1382, 1386 (8th Cir.1987). Evidence of the possession of a large sum of currency is clearly relevant in a narcotics prosecution as evidence of illegal dealings and ill-gotten gains. Id. The evidence regarding the prior acts in this case was clear and convincing, because defendant admitted them himself on cross-examination. While we may have reached a different conclusion, we cannot find that the district court abused its discretion in implicitly finding that the evidence was more probative than prejudicial. B. THE JURY NOTE The jury retired to deliberate at 4:00 p.m. and returned at 6:00 with a note, which read: We, the jury, are in complete concensus (sic) that not enough evidence has been presented in this trial to prove beyond a reasonable doubt the guilt or innocence of this defendant. Inproprieties (sic) in the prosecution’s case to actually place the defendant (or the cocaine he may have supplied) as indicated in counts 1 and 2 lead part of us to believe he is innocent (as he has not been proven guilty) and the lack of defense, to indicate he ws physically not at the locations (or supply cocaine to the locations) as indicated in counts 1 and 2, lead part of us to beleive (sic) he is guilty. These issues, without further testimony, cannot be resolved. The note was signed by all twelve jurors. The district judge sent the jury home for the evening, to resume deliberations in the morning. The next morning, defendant requested the court read the jury the burden of proof and reasonable doubt instructions. The district court sent all the instructions to the jury, with a note saying: Each side has rested and there will be no more testimony. The instructions are sent to you with this note. If after reading them you still have a question, please advise me. At 12:05 p.m., the jury returned a verdict of guilty on both counts of the indictment. Defendant argues that when, after two hours of deliberation, the twelve jurors signed a note stating that they were in complete consensus that not enough evidence had been presented to prove beyond a reasonable doubt the guilt or innocence of the defendant the judge should have recognized this as an acquittal, or at least should have specifically instructed the jurors that the government had the burden of proving the defendant’s guilt beyond a reasonable doubt. It is clear from the note that the jury was confused about a number of issues. They appeared to be confused at least as to the burden of proof and as to whether the government’s case was insufficient because of “inproprieties.” However, it is not clear that the jurors all agreed that the government failed to prove its case and that they intended to find the defendant not guilty. If that was the jury’s position, the foreman could have signed the proper verdict form and the case would have been over. The next to last sentence in the note states that “part of us beleive (sic) he is guilty.” We do not believe the trial court was required to, or could have, accepted the note as a not guilty verdict. The jury would have had to continue its deliberations with or without further instructions. “The response to a jury request for supplemental instructions is a matter within the sound discretion of the district court.” United States v. White, 794 F.2d 367, 370 (8th Cir.1986). See also United States v. Skarda, 845 F.2d 1508 (8th Cir.1988). “A trial judge must be painstakingly impartial any time he communicates with the jury during deliberations. He must insure that any supplemental instructions are accurate, clear, neutral, and non-prejudicial.” Id. The jury had deliberated only two hours when they drafted the contested note. The judge sent them home for the night. When they returned in the morning he gave them the complete set of instructions, which included instructions explaining the burden of proof, instructed them that there would be no further evidence, and that they were to let him know if they had any further questions. As the jury asked several more questions after reading the instructions again and none of the questions dealt with the burden of proof, it appears that the jurors were no longer confused on that issue. Submitting all the instructions is not error, particularly where there are only a total of sixteen instructions. See Richards v. Solem, 693 F.2d 760, 766 (8th Cir.1982) cert. denied, 461 U.S. 916, 103 S.Ct. 1898, 77 L.Ed.2d 286 (1983). We find no error in the district court’s response to the jury’s note. C. EXPERT OPINION As his final ground for appeal, defendant asserts that the failure to proffer Ronald Wagenhofer, a forensic chemist with the DEA, as an expert qualified to express opinions in the field of chemical analysis, and the failure of the district court to explicitly recognize him as such, denied de fendant his right of confrontation under the Sixth Amendment and were improper under Rules 702 and 104(a), Federal Rules of Evidence. The trial judge has broad discretion in the matter of the admission or exclusion of expert testimony and evidence, and the action will be sustained unless manifestly erroneous. Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 1122, 8 L.Ed.2d 313 (1962). Men “skilled in science, art, or particular trades may give their opinions as witnesses in matters pertaining to their professional calling.” Barefoot v. Estelle, 463 U.S. 880, 903, 103 S.Ct. 3383, 3400, 77 L.Ed.2d 1090 (1983), quoting Spring Co. v. Edgar, 99 U.S. 645, 657, 25 L.Ed. 487 (1879). Expert testimony should be admitted whenever it will assist the jury to understand the evidence or determine a fact in issue. Rule 702, Fed.R.Evid.; United States v. Rose, 731 F.2d 1337, 1345-46 (8th Cir.), cert. denied, 469 U.S. 931, 105 S.Ct. 326, 83 L.Ed.2d 263 (1984). Mr. Wagenhofer testified that he is a forensic chemist with the Drug Enforcement Administration. Appellant’s trial counsel, shortly after Mr. Wagenhofer began testifying, stated that he would stipulate to the witness’ qualifications as an expert if he had been qualified in the Western District of Missouri. The court responded that it wasn’t aware of such a qualification and that the jury was entitled to hear the witness’ qualifications. Wagenhofer testified as to his experience, educational background and training, professional associations, publications, lectures, court cases in which he has testified as an expert, and job duties. He then proceeded, without objection, to describe the tests he performed on the substances in question and the results of those tests, including his opinion that the substances were cocaine. The exhibits were then offered in evidence. Defendant objected to the admission of the evidence on the ground that no predicate had been established for such evidence. Judge Stevens overruled the objection and the cocaine was admitted into evidence. The government also offered into evidence Mr. Wagenhofer’s analytical report regarding the results of the tests indicating the presence of cocaine. Defendant raised the same “no predicate” objection which was again overruled by the court. At the close of the government’s evidence, defendant moved for a judgment of acquittal, claiming, inter alia, that Mr. Wagenhofer was not qualified by the district court as an expert witness. The court denied the motion, stated for the record that the witness was qualified, and offered defendant the opportunity to recall him. Defendant declined. Defendant made no objection prior to Mr. Wagenhofer’s testimony as to the identity of the substance in question. If counsel believed Mr. Wagenhofer was not qualified to testify as an expert, he should have objected once the government began to question as to the identity of the substance and prior to Wagenhofer’s response. It is clear, however, from the court’s subsequent rulings that the court was satisfied that Wagenhofer’s credentials and experience qualified him as an expert witness in this field. Defense counsel was then provided with ample opportunity to cross-examine to expose any weaknesses in Wagen-hofer’s credentials or process of analyzation. Although it is for the court to determine whether a witness is qualified to testify as an expert, there is no requirement that the court specifically make that finding in open court upon proffer of the offering party. Such an offer and finding by the Court might influence the jury in its evaluation of the expert and the better procedure is to avoid an acknowledgement of the witnesses’ expertise by the Court. This court, therefore, finds no error in the admission of the testimony of Mr. Wagenhofer and the analytical report and exhibits identifying the presence of cocaine in the substance obtained from Bartley. The judgment of the district court is affirmed. . The Honorable Joseph E. Stevens, Jr., United States District Judge for the Western District of Missouri. . The appellant does not raise the failure to give a limiting instruction as a ground for reversal on appeal. Therefore we need not consider it. However, as the trial court gave an instruction limiting the jury's consideration of the bad acts evidence, the request could only have been direefed toward limiting the evidence to the appellant’s credibility. As we hold that it was within the trial court’s discretion to admit the evidence under Federal Rule of Evidence 404(b), such limitation was not required.

KRAVITCH, Circuit Judge: I. William Alvin Smith, a Georgia prisoner, was convicted of armed robbery and malice murder and was sentenced to death for the offense of murder. On the morning of June 8, 1981, Smith walked from his home in Lexington, Georgia to a grocery store and service station owned by Daniel Lee Turner, an 82-year-old man known to Smith as “Mr. Dan.” Only Smith now knows what happened inside the store, but it is not disputed that within a few minutes after Smith entered the store, Turner was lying unconscious in a pool of blood, having been stabbed seventeen times and beaten with a hammer. Immediately after the attack on Turner, Smith noticed that his friend Willie Robinson was standing outside the door to Turner’s store. Robinson did not enter the store, but Smith went to the door, which was open, and told Robinson, “Damn, I think I killed Mr. Dan,” or words to the same effect. Smith asked Robinson not to tell anyone about the killing, but Robinson immediately left to inform the police. Smith then went back inside Turner’s store, removed Turner’s wallet, took money from the cash register, and fled, carrying the hammer with which he had attacked Turner. Eyewitness testimony by John Collins, who had stopped with his coworker Rita Ridgeway to purchase gasoline from Turner, established that Smith ran across the highway on which Turner’s store was located. Turner died at 8:10 p.m. that evening. Later that night, Smith surrendered to the police and was removed to the jail in Clarke County, which is adjacent to Oglethorpe County, where Smith resided and where the crime took place. The police advised Smith of his constitutional rights upon his surrender but did not question him until the next morning, after Smith had eaten and had an opportunity for sleep. At no point, however, did Smith meet with members of his family, and he was detained in a different county from the one in which his family resided. On the morning of June 9, Sheriff Gene Smith and Deputy Sheriff John Cartee again advised Smith of his constitutional rights. Smith declined consultation with an attorney and, after stating that he understood his constitutional rights, gave the following statement: I, William Allen [sic] Smith, make the following statement. I left home and went to my aunts, Ruby Dorsey. I left my aunts and went to John Howard Woods. I left John Howard and started walking through Black Bottom toward Lexington to go to Mr. Dan’s store. I asked for a pack of cigarettes and saw he was by his self. I then grabbed him. He started resisting me and I pulled knife out of back pocket and started stabbing him. He was still scuffling and he fall at back of store. He had a hammer. I kept stabbing him until he dropped hammer. I picked up hammer and hit him twice with it. I heard something come to door. I went to door and saw Willie Robinson and I told him I had killed Mr. Dan. I went back in store from front door and got money from cash register and out of Mr. Dan’s pocket. I then ran back up Black Bottom. I took my shirt and wrapped it around my hand that was bleeding, and also the hammer. I threw them on side of road up the street as I was running. I make this statement voluntarily without threat or promise of my own free will. This confession was written down by Car-tee and signed by Smith. Smith then made the following statement, which Cartee wrote on the back of the confession: “The reason for my actions, I was trying to get money for another car.” A grand jury charged Smith with malice murder and armed robbery. The state trial court held a hearing on the admissibility of Smith’s confession, at which Sheriff Smith and Deputy Cartee testified. After considering their testimony, the court concluded “that the statement was freely and voluntarily made, with knowledge, et cet-era” and allowed its admission. At trial, the state introduced the confession and a waiver of rights form signed by petitioner. Smith took the stand on his own behalf and gave an account of the occurrences inside Turner’s store. Although Smith’s testimony is difficult to follow on a cold record, it is certain that he admitted stabbing and beating Turner. Smith’s testimony differed in significant details, however, from the confession given to Sheriff Smith and Deputy Cartee. According to Smith’s testimony, he asked Turner for a pack of cigarettes. Turner turned around to reach for the cigarettes, and Smith touched him on the shoulder for an unexplained reason. As Smith touched Turner, he noticed that Turner had a hammer in his hand, but Smith “[didn’t] know where the hammer come from, off the counter or from where, you know.” Smith testified that Turner “grabbed that hammer, you know, he started forcing his self, you know, and I got carried away_All I know, I was stabbing. That’s all_ [H]e started to the back and then he fell, and when he fell, the hammer, it fell, too, and I guess I picked the hammer up and hit him with it.” Smith denied that he had intended to rob Turner when he entered the store and testified that he took Turner’s wallet and the money in the cash register after encountering Willie Robinson. Defense counsel then asked Smith whether he had any other statement to make to the jury. Smith replied, “Yes. I didn’t mean to kill Mr. Dan and I ain’t had nothing against Mr. Dan or nothing, and I’m sorry I did it.” Smith further said that Turner had always been friendly to him and his family, and that he had frequently been in Turner’s store but had never before stolen anything. The jury found Smith guilty of both charges, implicitly rejecting his defenses of insanity and lack of intent to kill. After hearing further testimony at the sentencing phase of the trial, the jury accepted the state’s contention that the murder of Turner was “outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim,” see O.C.G.A. § 17-10-30(b)(7), and imposed the death sentence. Smith unsuccessfully appealed to the Georgia Supreme Court. Smith v. State, 249 Ga. 228, 290 S.E.2d 43, cert. denied, 459 U.S. 882, 103 S.Ct. 182, 74 L.Ed.2d 148 (1982). He also attempted, without success, to secure post-conviction relief from the Georgia state courts. Smith v. Francis, 253 Ga. 782, 325 S.E.2d 362, cert. denied, 474 U.S. 925, 106 S.Ct. 260, 88 L.Ed.2d 266 (1985). Smith then filed a petition for habeas corpus in the United States District Court for the Middle District of Georgia. His petition alleged numerous grounds for relief from both his conviction and his sentence of death, including ineffective assistance of counsel, denial of an impartial jury, and improper introduction of his confession in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The district court held an evidentiary hearing on Smith’s mental state during the period of the crime and immediately thereafter. Smith presented the testimony of Dr. Everett Kuglar, a board certified psychiatrist, and Dr. Brad Fisher, a clinical correctional psychologist, both of whom had examined Smith. The state introduced the testimony of Dr. Marcelo DeLaserna, an expert in psychological testing, who had not met or tested Smith. The testimony by Smith’s experts tended to establish that Smith was mentally retarded and under severe stress during the pertinent period, and that Smith could not have waived his Miranda rights knowingly or intelligently if the nature of the rights and the consequences of waiver had not been slowly and painstakingly explained to him in a stress-free environment. The state’s expert did not expressly disagree with this conclusion. The district court issued a memorandum opinion holding that Smith had not validly waived his Miranda rights when he gave a confession to Sheriff Smith and Deputy Cartee. Smith v. Kemp, 664 F.Supp. 500 (M.D.Ga.1987). The district court further concluded that the introduction of Smith’s confession was harmless error as to his conviction because “[t]he evidence in support of Smith’s conviction for murder and armed robbery [is] overwhelming.” Id. at 506. The district court did not believe, however, that the confession was harmless as to Smith’s sentence of death, noting that when Smith took the stand at his trial, “[his] testimony ... was substantially more sympathetic than was the matter-of-fact written confession on the violent acts he had committed.” Id. The district court therefore granted the writ of habeas corpus as to the death sentence, subject to the state’s conducting a new sentencing hearing. As Smith did not abandon his other grounds for relief, the state asked the district court to reach the remaining claims. The district court declined to do so, citing considerations of judicial economy. The state consequently sought appellate review of the district court’s order granting habe-as corpus based on the Miranda claim, and Smith cross-appealed from the district court’s conclusion that the Miranda violation was harmless as to his conviction. Neither party, however, requested that the district court expressly determine that there was no just reason for delay and expressly direct the entry of a final judgment on the Miranda claim. Cf Fed.R. Civ.P. 54(b). In the absence of such a determination and direction by the district court, any order adjudicating fewer than all the claims of the parties in a suit is not a final judgment appealable as of right under 28 U.S.C. § 1291. See In re Yarn Processing Patent Validity Litigation, 680 F.2d 1338, 1339 (11th Cir.1982) (per curiam). This court accordingly concluded that it lacked jurisdiction over the appeal and cross-appeal. Smith v. Kemp, 849 F.2d 481 (11th Cir.1988) (per curiam). After dismissal of the appeals, the parties expeditiously sought, and the district court expeditiously granted, certification under Fed.R.Civ.P. 54(b) that there was no just reason for delay and that final judgment should be entered on the Miranda claim. Smith filed a notice of appeal from the district court’s denial of habeas corpus as to the conviction, and the state cross-appealed from the grant of the writ as to the sentence. Following the procedure adopted in In re Yarn Processing Patent Validity Litigation, 680 F.2d at 1340, Smith moved that the appeals be decided on the record, briefs, and oral argument submitted to the panel in the parties’ prior attempted appeal. See Smith v. Kemp, 849 F.2d at 483-84. We granted Smith’s motion, and as we now have jurisdiction, we proceed to the merits of the case. II. The only claim on which the district court directed the entry of final judgment, and thus the only claim presented for consideration by this court, is the validity vel non of Smith’s waiver of his Miranda rights. A panel of this court recently emphasized that the validity of a suspect’s waiver of his Miranda rights is an issue distinct from the voluntariness of a confession. See Miller v. Dugger, 838 F.2d 1530 (11th Cir.), cert. denied, — U.S. -, 108 S.Ct. 2832, 100 L.Ed.2d 933 (1988). The district court correctly understood this dis tinction. See Smith v. Kemp, 664 F.Supp. at 504. “The inquiry [into the validity of a waiver] has two distinct dimensions. First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the ‘totality of the circumstances surrounding the interrogation’ reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.” Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986) (citations omitted). In particular, “[t]he determination of whether there has been an intelligent waiver ... must depend in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); see Miranda, 384 U.S. at 475, 86 S.Ct. at 1628 (applying Johnson v. Zerbst standard to waiver of Miranda rights); Miller v. Dugger, 838 F.2d at 1537-38 (same). The ultimate question of the.validity of a suspect’s waiver of his Miranda rights is “ ‘a legal question requiring an independent federal determination,’ ” Lindsey v. Smith, 820 F.2d 1137, 1150 (11th Cir.1987) (quoting Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 450, 88 L.Ed.2d 405 (1985)), not an issue of fact on which a presumption of correctness would apply to a determination by a state court. Cf. 28 U.S.C. § 2254(d). The record in this case compels the conclusion that Smith did not intelligently waive his Miranda rights. Dr. Kuglar testified that Smith had a mental age of 10 or 11 and an intelligence quotient (IQ) of approximately 65, placing Smith in the bottom two percent of the population. According to Kuglar, [T]his individual’s intellectual limitations seriously question whether this man understood the consequences of confessing and whether or not he understood what his rights are. In our work with this man, you had to be very slow and patient in describing things to him. It certainly appeared to me both from my evaluation of him and his testing that he understood what he was doing was confessing, but I don’t believe the man had an intellectual appreciation of what this confession would mean to him, nor do I think most people with an IQ in this range would have an appreciation unless it was very carefully explained to him. What I can’t comment on, because I wasn’t there, is how carefully it was explained to him, how slow they went with this, but unless this was done very patiently and slowly, I don’t believe he has the intellectual capacity to understand what it would mean to him. Under questioning from the district court, Kuglar repeated his conclusion that “it would be very unusual with a person of this IQ to be able to intelligently appreciate what he is doing when his Miranda rights are read to him.” Kuglar further testified that Smith had low verbal abilities and would have had difficulty understanding the language of the Miranda warnings. Moreover, although Kuglar did not believe that Smith would have confessed to committing an act that he had not done, Kuglar did think that Smith was sufficiently suggestible that “it would be fairly easy to moderate this man in the lines of exactly what you might want him to say if it was in the general area of what had occurred.” Kuglar’s conclusions were confirmed by Dr. Fisher. Fisher reported that when he conducted psychological tests on Smith, “you had to repeat everything and give the questions to him extremely slowly.” Fisher was unable to complete a Minnesota Multiphasic Personality Inventory test of Smith because Smith did not have the sixth-to eighth-grade reading ability necessary to take the test. Fisher believed that “you have to go about giving [Smith] the information in that [Miranda ] waiver much more carefully; in other words, he comes iri with a deficit of understanding so that you have to overcompensate through a careful explanation of all the terms and reading it slowly and other things that will compensate for that handicap.” Fisher agreed with Kuglar that Smith was seriously deficient in verbal skills, and he confirmed that, because Smith was suggestible and would do what he perceived an authority figure would want him to do, “you have to be doubly careful to make sure that he’s really understanding [the Miranda waiver] and not just showing his dependent characteristic to an authority figure in a stressful situation.” The state does not dispute the general proposition that a suspect’s mental limitations can interfere with his capacity to make an intelligent waiver of the Miranda rights. Rather, the state argues that “the Petitioner’s own experts testified that the Petitioner was fully capable of understanding the Miranda warnings if they were given in a fashion recommended by the Petitioner’s witnesses_ Neither of the witnesses who testified for the Petitioner before the district court [was] present either when the Petitioner actually gave the statement or when the trial court, judging the credibility of the witnesses, held the Jackson-Denno hearing.... Neither could say for a fact that the Miranda warnings were given, in a manner which the Petitioner could not understand.” The state’s argument is flawed in three respects. First, Smith’s experts did not state that Smith would be “fully capable of understanding the Miranda warnings” if they were explained slowly. They testified to the inverse of that proposition, that Smith would not be capable of understanding the warnings if they were not explained slowly. The state’s conclusion does not necessarily follow from the experts’ testimony. Although the experts rejected the notion that a mentally retarded suspect would never be able to make an intelligent waiver of rights, they did not give their assurance that Smith himself would have been “fully capable” of validly waiving the Miranda rights even under ideal circumstances. Second, Dr. Fisher’s testimony arguably implied that, given the stressful situation in which Smith found himself, Smith could not have waived his rights intelligently even if the rights had been explained to him carefully. After Fisher explained the phenomenon of “shock response,” which mentally retarded persons commonly experience when they encounter stress, the district court asked, “[D]o you feel that [Smith] was retarded to such a degree that he could not intelligently waive his right to counsel, etcetera?” Fisher replied, “Right. If I did testify to that, I would like to take it back, because what I mean to say, my belief is that with excessive stress he could not.” Fisher believed that Smith was under severe stress from the loss of his girlfriend and his car even before he killed Turner, and that Smith’s stress, “confusion, disorientation, and need for direction” were exacerbated by his commission of the crime, his flight, and his incarceration overnight in. another county without communication from his family. Third, a fair reading of the record indicates that Sheriff Smith and Deputy Cartee did not explain the Miranda rights to petitioner slowly and carefully. At the Jackson-Denno hearing, Sheriff Smith testified, “We read his rights to him. We asked him did he understand them. He said he did, and he signed it....” Sheriff Smith also stated, “I believe the [petitioner] read [the rights form] his self. I asked him did he understand it and he said he did.” Conspicuous by its absence, in our view, is any hint that Sheriff Smith and Deputy Cartee were “doubly careful” in ensuring that petitioner understood his rights, particularly as Sheriff Smith testified that the entire process of securing Smith’s waiver and confession took “not over thirty minutes at the longest.” The state also argues that Smith previously had been charged with burglary and forgery by Sheriff Smith and thus had experience with the criminal justice system sufficient to apprise him of the meaning of the Miranda warnings. The state thus seeks to distinguish this case from Cooper v. Griffin, 455 F.2d 1142 (5th Cir.1972), which involved two retarded teenage boys without prior experience with the criminal process. We agree with the state that prior experience with criminal justice may be relevant in determining whether a waiver of constitutional rights is valid, see Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2571-72, 61 L.Ed.2d 197 (1979), but we find no evidence on the record to convince us that the prior prosecution of Smith was particularly important in this case. The state offered no testimony to rebut the deeply pessimistic opinions of Smith’s experts about Smith’s capacity to understand and waive his rights. Indeed, when counsel for the state questioned Dr. Fisher on this issue, Dr. Fisher resisted the suggestion that prior experience would be especially helpful to a retarded person’s understanding of constitutional rights: Q: In your experience, do you find that repeat offenders are more knowledgeable regarding, first of all, the trial system? Have you had any experience with that? A: I have had some experience with that, and to some extent that’s true; to a much lesser, if any extent, with a person who is retarded, obviously, but you didn’t — you know, you didn’t classify it to just retarded people, so for that whole group, yes, one learns from experience, so if they’ve been through the process before, they are more familiar with it. Accordingly, we conclude that petitioner did not intelligently waive his Miranda rights. III. We next consider whether the introduction of Smith’s confession was harmless error as to Smith’s conviction. “If, upon its reading of the trial record, the appellate court is firmly convinced that the evidence of guilt was so overwhelming that the trier of fact would have reached the same result without the tainted evidence, then there is insufficient prejudice to mandate the invalidation of the conviction.” Cape v. Francis, 741 F.2d 1287, 1294-95 (11th Cir.1984), cert. denied, 474 U.S. 911, 106 S.Ct. 281, 88 L.Ed.2d 245 (1985). The district court found overwhelming evidence to support Smith’s conviction for murder. The court noted that Smith confessed the killing to Willie Robinson and that Smith testified to the circumstances of the crime at trial. Certainly there was overwhelming evidence that Smith killed Turner; Smith never disputed this point. Smith was not charged with Turner’s slaying, however, but with the offense of malice murder. The harmless-error analysis requires consideration of the elements of malice murder, the charges to the jury, and the possible existence of lesser included offenses, as well as the amount of proof adduced at trial. Georgia defines the crime of malice murder as follows: (a) A person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being. (b) Express malice is that deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart. O.C.G.A. § 16-5-1. Several decisions of this court and the Georgia courts establish that intent to kill is an essential element of the crime of malice murder. See, e.g., Lamb v. Jernigan, 683 F.2d 1332, 1336-37 (11th Cir.1982), cert. denied, 460 U.S. 1024, 103 S.Ct. 1276, 75 L.Ed.2d 496 (1983); Mason v. Balkcom, 669 F.2d 222, 224 (5th Cir. Unit B 1982), cert. denied, 460 U.S. 1016, 103 S.Ct. 1260, 75 L.Ed.2d 487 (1983); Parks v. State, 254 Ga. 403, 330 S.E.2d 686, 696 (1985); Patterson v. State, 239 Ga. 409, 238 S.E.2d 2, 8 (1977). The trial court in this case instructed the jury that intent to kill was a “necessary ingredient” to the crime of malice murder. Because Smith conceded that he committed the actual killing, “the essential element” of the crime was his intent to kill. Cf. Brooks v. Kemp, 762 F.2d 1383, 1393 (11th Cir.1985) (en banc), vacated and remanded for further consideration, 478 U.S. 1016, 106 S.Ct. 3325, 92 L.Ed.2d 732 (1986), reinstated on remand, 809 F.2d 700 (11th Cir.) (en banc), cert. denied, — U.S. -, 107 S.Ct. 3240, 97 L.Ed.2d 744 (1987); Mason v. Balkcom, 669 F.2d at 227. We must therefore focus on whether the erroneous admission of Smith’s confession contributed to the jury’s conclusion that Smith intended to kill Turner. In cases involving burden-shifting instructions on the issue of intent to kill, we have stated that “a defense of accident or lack of intent not only places the element of intent in issue, but substantially reduces the extent to which evidence against the defendant can be considered to be ‘overwhelming.’ ” Carter v. Montgomery, 769 F.2d 1537, 1541 (11th Cir.1985). Moreover, “[bjecause confessions carry ‘extreme probative weight,’ the admission of an unlawfully obtained confession rarely is ‘harmless error.’ In fact, we have ruled the admission of an unlawful confession is harmless only in limited instances, such as where there was in evidence at least one other lawful confession by the defendant.” Christopher v. Florida, 824 F.2d 836, 846 (11th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1057, 98 L.Ed.2d 1019 (1988). In this case, the improper admission of Smith’s confession might have made a considerable difference. Smith’s confession to the police was the only “direct” evidence for the state that Smith intended to kill Turner. On the stand, Smith denied intending to kill Turner, and his trial testimony, if uncontradicted by the illegal confession, might have convinced the jury that Smith intended only to harm Turner. Accord Owen v. Alabama, 849 F.2d 536, 540 (11th Cir.1988) (illegally admitted confession not harmless error in Alabama murder conviction, as defendant’s intent to kill was “poignantly evident only in his confession”); cf. Mason v. Balkcom, 669 F.2d at 227 (claim of self-defense does not implicitly concede intent to kill, because one can “shoot to wound in self-defense”). In addition, the account given by Turner at trial could well have supported a verdict on the lesser included offense of voluntary manslaughter rather than malice murder. Under Georgia law, “a person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person.” O.C.G.A. § 16-5-2(a).' Smith testified that he saw Turner grabbing a hammer, or at least holding a hammer, after Smith touched Turner on the shoulder. Smith could well have believed that Turner intended to hit him with the hammer. Even though Turner’s back was turned to Smith at the time, Turner’s apparent (to Smith) intent to use the hammer might have aroused “sudden passion in the person killing so that, rather than defending himself, he willfully kills the attacker, albeit without malice aforethought, when it was not necessary for him to do so in order to protect himself.” Syms v. State, 175 Ga.App. 179, 332 S.E.2d 689, 690 (1985). “The fear of some danger can be sufficient provocation to excite the passion necessary for voluntary manslaughter.” Id. This case is similar to Syms, in which the victim pointed a gun at the defendant, thereby exciting a sudden passion in the defendant, but the defendant shot the victim when the victim glanced away, suggesting that the defendant was not justi fied in his use of force. A case even closer to this is White v. State, 129 Ga.App. 353, 199 S.E.2d 624 (1973). In White, the victim quarreled with and threatened the defendant and “reached toward the back seat [of his car] for some unknown article, but was still sitting in his vehicle some yards away when the defendant, standing behind his son, suddenly caught up a shotgun and fired point blank at the deceased.” Id. 199 S.E.2d at 625. In both Syms and White, the Georgia Court of Appeals held that the trial court was correct to instruct the jury on the lesser included offense of voluntary manslaughter in addition to the crime of murder and found that the evidence supported a verdict of guilty for manslaughter. We therefore conclude that the admission of Smith’s confession was not harmless as to his conviction for malice murder. We likewise hold that Smith is entitled to relief from his conviction for armed robbery. Smith’s confession provided the prosecution with damning evidence that Smith attacked Turner to obtain money for a new car. Smith’s trial testimony tended to establish, however, that he did not form the intent to take money from Turner’s wallet and cash register until the attack on Turner was completed. If the jury believed Smith’s testimony, they could not have convicted him of armed robbery. Woods v. Linahan, 648 F.2d 973 (5th Cir. Unit B June 1981), is instructive in this regard. In that case, Dessie Woods and Cheryl Todd were hitchhiking from Reids-ville, Georgia to Atlanta when they accepted a ride from Ronnie Horne. Woods shot Horne while trying to fend off a sexual assault. After killing Horne, Woods reached into Horne’s pocket and removed his wallet, containing $120, to finance the trip back to Atlanta. Woods was convicted of voluntary manslaughter and armed robbery. This court sustained Woods’ conviction for manslaughter but held that the evidence was insufficient to support her conviction for armed robbery. We noted that under Georgia law, “a person commits armed robbery when, (1) with intent to commit theft, (2) he takes property of another from the person or the immediate presence of another, (3) by use of an offensive weapon.” Id. at 978. We concluded that the record was devoid of evidence showing that the defendant “used the weapon or shot the victim in order to rob him of his money.” Id. (emphasis added). To obtain a conviction for armed robbery in Georgia, the state must prove that the defendant used an offensive weapon in order to rob the victim of his money. A rational jury could have concluded, from circumstantial evidence including the state of Turner’s store after the crime, that Smith attacked Turner “in order to rob him,” but in light of Smith’s testimony suggesting that the theft was an afterthought, we do not find the evidence of Smith’s guilt overwhelming so as to render the admission of the confession harmless. IY. The district court concluded that the introduction of Smith’s confession was not harmless as to the sentence of death, noting that Smith’s trial testimony was “substantially more sympathetic” than Smith’s confession. The state does not dispute that the district court’s conclusion is correct under the familiar “harmless error” analysis of Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). Rather, the state contends that we should apply the more stringent “reasonable probability of a different result” test employed for claims of ineffective assistance of counsel, see Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984), or that we should not engage in harmless error analysis at all if we conclude that the evidence was sufficient to support the jury’s finding of an aggravating circumstance. The state’s argument is without merit. Last Term, the Supreme Court confirmed that the Chapman standard governs harmless error as to a sentence of death. The Court pointedly disavowed any implication that we should apply a “sufficiency of the evidence” standard instead: “The question ... is not whether the legally admitted evidence was sufficient to support the death sentence, which we assume it was, but rather, whether the State has proved ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” Satterwhite v. Texas, — U.S. -, 108 S.Ct. 1792, 1798, 100 L.Ed.2d 284 (1988) (quoting Chapman, 386 U.S. at 24, 87 S.Ct. at 828). We agree with the district court that the considerable difference between the tenor of Smith’s confession and that of his trial testimony makes it impossible to conclude beyond a reasonable doubt that the improperly admitted confession did not influence the sentencing jury. Accordingly, the order of the district court is AFFIRMED to the extent that it granted the writ of habeas corpus as to Smith’s sentence of death and REVERSED insofar as it denied the writ as to Smith’s convictions. The case is REMANDED to the district court with instructions to grant the writ of habeas corpus unless the state elects to afford Smith a new trial within a reasonable period, to be determined by the district court. . See O.C.G.A. § 16-5-l(a). . See O.C.G.A. § 16-&wkey;l(a). . We rejected the state’s suggestion that we had jurisdiction under Blake v. Kemp, 758 F.2d 523 (11th Cir.), cert. denied, 474 U.S. 998, 106 S.Ct. 374, 88 L.Ed.2d 367 (1985), and Wilson v. Kemp, 777 F.2d 621 (11th Cir.1985), cert. denied, 476 U.S. 1153, 106 S.Ct. 2258, 90 L.Ed.2d 703 (1986). In Blake and Wilson, both death penalty cases, this court held that the state could appeal a district court order granting the writ of habeas corpus, even though the district court had not addressed all the claims raised by the petitioner, because the district court’s order "gave the petitioner all he could hope to achieve by the litigation." Blake, 758 F.2d at 525. We noted that Smith had not obtained “all he could hope to achieve” because the district court had denied the writ as to his conviction but had declined to reach his other grounds for attack on the conviction. Smith v. Kemp, 849 F.2d at 483. . Smith is thus appellant and cross-appellee in this second appeal, and the state is now appellee and cross-appellant. To avoid confusion with the first, abortive appeal, in which the parties’ positions were reversed, we shall refer to Smith as “Smith” or "petitioner” and to the state solely as "the state.” . The state urges that the district court erred in .failing to accord the state courts’ factual conclusions a presumption of correctness, as required by 28 U.S.C. § 2254(d). We agree with the district court that the presumption of correctness is inapplicable to the central issues in this case. First, as explained in the text, the validity vel non of the waiver of constitutional rights is a legal question, not an issue of fact. Second, the state trial court that heard Smith’s suppression motion made no factual findings, explicit or implicit, about Smith’s retardation or its effect on his capacity to waive his rights. See Townsend v. Sain, 372 U.S. 293, 313-14, 83 S.Ct. 745, 757-58, 9 L.Ed.2d 770 (1963) (state court must actually reach and decide issues of fact for presumption of correctness to apply). Third, after reviewing the proceedings before the state habeas court, we conclude that "it is unclear whether the state finder applied correct constitutional standards in disposing of the claim.... Since the decision of the state trier of fact may rest upon an error of law rather than an adverse determination of the facts, a hearing [was] compelled to ascertain the facts.” Id. at 314, 83 S.Ct. at 758. The state habeas court’s order suggests that it conflated the issues of voluntariness and waiver and failed to focus sufficiently on the issue of Smith's ability to make an intelligent waiver. The state habeas court also may have interpreted controlling Georgia cases to hold that the mere existence of a defendant’s mental limitations, "without more,” does not render the defendant incapable of waiving constitutional rights. See Donaldson v. State, 249 Ga. 186, 289 S.E.2d 242, 245 (1982); Parker v. State, 161 Ga.App. 478, 288 S.E.2d 297, 298 (1982). If the state habeas court extracted from these cases a constitutional rule that proof of a defendant’s mental limitations would always be legally insufficient to establish the invalidity of a waiver, the rule is inconsistent with the flexible approach required by Johnson v. Zerbst, 304 U.S. at 468, 58 S.Ct. at 1024-25. We have previously given great weight to a defendant's mental retardation in concluding that his waiver of constitutional rights was invalid. See, e.g., Cooper v. Griffin, 455 F.2d 1142, 1145 (5th Cir.1972) (binding precedent under Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc)). But cf. Dunkins v. Thigpen, 854 F.2d 394 at 399-400 (11th Cir.1988) (mental retardation did not invalidate defendant’s waiver of Miranda rights, in light of testimony that defendant had no difficulty communicating with counsel and psychiatric report concluding that defendant had adequate judgment, insight, memory, and attention span). . See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) (when defendant challenges voluntariness of confession, due process requires that trial judge make independent determination that confession is voluntary before permitting it to be heard by the jury). . Dr. Fisher did testify that if the Miranda warnings “were read slowly and carefully in a non-stressful situation, yes, he could comprehend and willingly and knowingly — in other words, he had that ability.” Fisher carefully limited his response to non-stressful situations, which, in his opinion, the post-arrest interrogation was not. . The state argues that we should disregard the testimony of Dr. Fisher because the state habeas court, which had Dr. Fisher’s affidavit, implicitly made an adverse determination as to Dr. Fisher’s credibility when it rejected Smith's Miranda claim. We disagree. Although the credibility of a witness is a factual determination to which federal courts must accord a presumption of correctness under 28 U.S.C. § 2254, the state habeas court’s rejection of Smith’s Miranda claim did not necessarily comprise a rejection of Fisher’s credibility. Rather, as explained supra note 5, the state court may have rejected Smith’s claim because it applied an erroneous rule of law to Smith’s claim. Furthermore, we fail to see how the state habeas court could have made a decision on Fisher’s credibility when Fisher never gave oral testimony. We previously have expressed doubts as to whether a credibility determination can be fairly made on a paper record. See Agee v. White, 809 F.2d 1487, 1494 n. 3 (11th Cir.1987). .Deputy Cartee’s testimony at trial was to a similar effect: “He said he was willing to talk. In fact, Sheriff Smith asked him, I believe it was twice, on two different occasions, did he want an attorney and he said no, he did not.... He was simply asked did he want to make a statement, and he gave us the full statement which was written down and he signed.... After the statement was complete, I first read it back to him. Then it was given to him to look over before he signed it.... He read it and said he understood it." . In Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir.1982), this circuit adopted as binding precedent decisions issued by Unit B of the former Fifth Circuit after September 30, 1981. . A separate line of Georgia cases holds that malice murder may be proven by circumstances which demonstrate a reckless disregard for human life, see, e.g., Flynn v. State, 255 Ga. 415, 339 S.E.2d 259, 262 (1986); Walden v. State, 251 Ga. 505, 307 S.E.2d 474, 475-76 (1983), under the theory that “[a] wanton and reckless state of mind is sometimes the equivalent of a specific intent to kill,” Myrick v. State, 199 Ga. 244, 34 S.E.2d 36, 39 (1945) and thus may satisfy the requirement of an "abandoned and malignant heart.” 40 Am.Jur.2d Homicide § 51 (1968). The trial court did not instruct the jury on this theory of murder, but rather charged the jury that intent to kill was an essential element of malice murder. Nor did the trial court instruct the jury on the theory of felony murder. Cf. O.C.G.A. § 16-5-l(c). . In Christopher, we noted that we have also ruled the unlawful admission of a confession to be harmless when there was direct physical evidence of guilt. 824 F.2d at 846 n. 24; see, e.g., Harryman v. Estelle, 616 F.2d 870, 876-78 (5th Cir.) (en banc) (unlawfully admitted confession that condom found on defendant’s person contained heroin harmless in light of laboratory tests identifying substance), cert. denied, 449 U.S. 860, 101 S.Ct. 161, 66 L.Ed.2d 76 (1980). Of course, this case is not like Harryman, for ‘“intent/ by its very nature, cannot be proven by direct evidence, unless the defendant expressly states his intent.” Brooks v. Kemp, 762 F.2d at 1423 (Kravitch, J., concurring in part and dissenting in part). . Under Georgia law, a person is justified in using force against another only when he reasonably believes that such force is necessary to defend against the other’s imminent use of unlawful force. See O.C.G.A. § 16-3-21. Under the facts of Syms, the defendant might not have been justified in believing that the victim’s use of unlawful force was imminent. . The trial court did not instruct Smith’s jury on voluntary manslaughter. Smith alleged in his petition for habeas corpus that this omission deprived him of due process, and that defense counsel was ineffective for failing to request such an instruction. See Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). The district court did not address this claim.

PER CURIAM: Appellants Francisco and Maura Fernandez voluntarily filed a joint Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Western District of Texas. Pursuant to 11 U.S.C. § 522(b), Mr. and Mrs. Fernandez elected to claim exemptions as provided by Texas state law. Appellants listed over $8,000 worth of jewelry as exempt property. Texas Property Code § 42.002(3)(C) allows debtors to exempt “clothing,” but includes no separate category for “jewelry.” The bankruptcy court came to the plausible conclusion that “clothing” does not include jewelry and denied appellants’ claimed exemptions as a matter of law. The district court affirmed. 89 B.R. 601 (W.D.Tex.1988). Applying Texas law governing the construction of exemption statutes, we now reverse. I Prior to recodification in 1983, Texas law allowed a family to exempt “wearing apparel.” Cases interpreting the exemption statute held that the phrase “wearing apparel” included at least some items of jewelry. For instance, in Hickman v. Hickman, the Texas Supreme Court ruled that two diamond rings occasionally worn by the owner should be considered “wearing apparel,” even though the owner did not wear them continuously and even, at times, pledged the rings as collateral for loans or kept them in a bank box. The court noted the traditional Texas rule that our exemption laws should be liberally construed in favor of express exemptions, and should never be restricted in their meaning and effect so as to minimize their operation upon the beneficent objects of the statutes. Without doubt the exemption would generally be resolved in favor of the claimant. This liberal rule of construction has led Texas courts to conclude that a dray is a “wagon” ... an automobile is a “carriage” ... a piano is “household and kitchen furniture” ... [and] the word “horse” includes a bridle and saddle, as well as the shoes on its feet and the rope and martingales around its neck_ And this spirit of liberal construction has been indulged until [the courts] have held that an unbroken colt is a “horse” ... and even that a mule, removed as he is one degree by consanguinity, is nevertheless a “horse.” Furthermore, in their effort to extend the humane and beneficial character of [their] exemption statute, [Texas courts] have become so blind to every other consideration that they have looked upon the mule’s father and pronounced him— voice, ears, and all—a horse. As part of its ongoing project of statutory recodification, the Texas Legislature in 1983 adopted Senate Bill No. 748, creating the Texas Property Code. The bill repealed the exemptions contained in old article 3836 and recodified them at Tex. Prop.Code Ann. § 42.002 (Vernon 1984). In the process, the code revisors changed the phrase “wearing apparel,” substituting in its place the less stilted term “clothing.” The courts below decided that the Texas Legislature had made a substantive change in state law. Since the cases construing jewelry to be wearing apparel turned on the fact that jewelry is “worn,” they reasoned, the decision to remove the word “wearing” from the statute dictated a contrary result. Because “clothing” does not normally include jewelry, the lower courts disallowed the exemptions claimed by the debtors. The lower court opinions err by giving an effect to the adoption of the Texas Property Code that the Texas Legislature did not intend. We begin our analysis with provisions of the Texas Code Construction Act relating to the construction of statutes: In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the: (1) object sought to be attained; (2) circumstances under which the statute was enacted; (3) legislative history; (4) common law or former statutory provisions, including laws on the same or similar subjects; (5) consequences of a particular construction; (6) administrative construction of the statute; and (7) title (caption), preamble, and emergency provison. In the case of the Texas Property Code, the circumstances of enactment and legislative history make clear that the Texas Legislature did not intend to change the legal effect of the prior statute. In authorizing recodification, the Legislature narrowly defined the task, providing, “When revising a statute the [Texas Legislative] Council may not alter the sense, meaning, or effect of the statute.” The revisors of the Property Code took this prohibition to heart: In reviewing the proposed code, the reader should keep in mind the following: (3) This is a nonsubstantive revision. The staffs authority does not include improving the substance of law. The sole purpose of this draft is to compile all the relevant law, arrange it in a logical fashion, and rewrite it without altering its meaning or legal effect. If a particular source statute is ambiguous and the ambiguity cannot be resolved without a potential substantive effect, the ambiguity is preserved. The Property Code as adopted specifically states that it constitutes “part of the state’s continuing statutory revision program,” which “contemplates a topic-by-topic revision of the state’s general and permanent statute law without substantive change.” Section seven of Senate Bill No. 748, which contained the new code, declares, “This Act is intended as a recodi-fication only, and no substantive change in the law is intended.” The bill’s sponsor, Senator McFarland, and the chief revisor, Mr. Kindred, repeatedly assured the legislators that the proposed code made no substantive changes in prior statutes. Repeatedly and clearly, the Texas Legislature stated its intention that adoption of the Property Code have no effect on the legal results reached under the statutes recodified. Even though the exemption statute as amended is not ambiguous, the Code Construction Act allows us to take these statements into account in construing the statute. However, our holding does not rest on the legislative history alone. The Code Construction Act also allows us to consider the “consequences of a particular construction.” In practical terms, the lower court rulings allow a bankruptcy trustee to “remove the pendants from a lady’s ears, or a badge from the veteran’s coat.” We find it difficult to believe that Texas law requires debtors to hand over their wedding rings to satisfy the claims of creditors, while letting them keep “home furnishings, including family heirlooms,” and “athletic and sporting equipment.” The lower court construction of the statute does not mesh well with the Texas tradition of liberality toward the debtor in construing exemption statutes. II The Bankruptcy Trustee urges that the exemption statutes should be construed to give debtors a fresh start, not a head start. The Fernandezes’ claim of over $8,000 worth of exempt jewelry may well be excessive. Our holding should not be read as allowing automatic exemption of all jewelry claimed by the debtor. In particular, two requirements limit a debtor’s ability to exempt jewelry from the Trustee’s reach. First, the item of jewelry must be “worn by the owner.” Since we hold today that the Texas Legislature intended no change in the law when it substituted “clothing” for “wearing apparel” in the exemption statute, it follows that the limitations imposed by the older cases still apply under the new statutory language. Thus, it would be inappropriate to claim an exemption for jewelry held by the debtor for investment or resale purposes. Second, the statute requires that items claimed under the “clothing” category of the exemption statute be “reasonably necessary for the family or single adult.” The “reasonably necessary” language was added to the statute in 1973 and has been construed by at least one court in the context of a claimed exemption of jewelry. Ill We hold today that Tex.Prop.Code Ann. § 42.002(3)(C) (Vernon 1984) allows a debtor to claim an exemption for jewelry worn by the owner and reasonably necessary for the family or single adult. Since the bankruptcy court failed to apply these standards to the exemptions claimed by Mr. and Mrs. Fernandez, we remand the case for reconsideration in light of our opinion. REVERSED AND REMANDED. . The debtors claimed as exempt property a man's watch, two ladies’ watches, cuff links, two wedding rings, two other rings, three necklaces, six earrings and a pendant (amethyst and diamonds), and three bracelets. The estimated value of these items totalled $8,005. . The federal exemptions include “wearing apparel” and "jewelry" in separate categories. See 11 U.S.C. § 522(d)(3), (4). . Tex.Rev.Civ.Stat.Ann. art. 3832(17) (Vernon 1966) (repealed) contained the “all wearing apparel” language. Article 3832 was repealed by 1973 Tex.Gen.Laws Ch. 588, § 4, at 1629, which moved the "wearing apparel” language to article 3836. • . See, e.g., In re Richards, 64 F.Supp. 923, 927 (S.D.Tex.1946); First National Bank of Eagle Lake v. Robinson, 124 S.W. 177, 179 (Tex.Civ.App.—San Antonio 1909, no writ). . 149 Tex. 439, 234 S.W.2d 410, 413-14 (1950). . Id. 234 S.W.2d at 413 (quoting Carson v. McFarland, 206 S.W.2d 130, 132 (Tex.Civ.App.—San Antonio 1947, writ ref'd)). . Patterson v. English, 142 S.W. 18, 19 (Tex.Civ.App.-Amarillo 1911, no writ) (citations omitted; holding that "the spirit of a law which can convert a jackass into a horse” would protect three heifers which had never given milk, each with an unborn calf, under the category of "five milch cows and their calves”). . The project of recodification is authorized by Tex. Gov’t Code Ann. § 323.007 (Vernon 1988), itself a recodification of Tex.Rev.Civ.Stat.Ann. art. 5429b-l (repealed). The Texas Legislative Council has been authorized to "plan and execute a permanent statutory revision program for the systematic and continuous study of the statutes of this state and for the formal revision of the statutes on a topical or code basis.” Tex. Gov’t Code Ann. § 323.007(a) (Vernon 1988). "The purpose of the program is to clarify and simplify the statutes and to make the statutes more accessible, understandable, and usable.” Id. . For instance, the district court wrote: This change in terminology from "all wearing apparel” to "clothing" cannot be misconstrued as a modernization of the phrase "all wearing apparel” since this expression is not archaic or infrequently used. This alteration by the Texas Legislature has excluded the possibility of jewelry as exempt personal property. Furthermore, the Texas Legislature has chosen not to include a separate exemption for jewelry as. does 11 U.S.C. Section 522(d)(4), under the Federal exemptions. . For instance, the bankruptcy court concluded: The statute itself might not have been overwritten by the change in wording, but the judicial gloss in cases like Hickman and Robinson apparently has been. The holdings of these old Texas cases were adornments which hung on the word "wearing." That word is now gone from the statute and with it, the justification for the gloss which once made jewelry exempt. . The Property Code specifically directs courts to the Code Construction Act. Tex.Prop.Code Ann. § 1.002 (Vernon Supp. 1988). . Tex.Gov't Code Ann. § 311.023 (Vernon 1988) (emphasis supplied). The Trustee points our attention to Carbide Int'l, Ltd. v. State, 695 S.W.2d 653, 656 n. 3 (Tex.Civ.App.—Austin 1985, no writ), wherein the court stated: When adopted by the Legislature in a constitutional manner, the resulting Code as a whole constitutes a law in and of itself, and not a mere compilation of previous statutes, save in certain respects not material here. The Code becomes the statutory law of the State respecting the subjects to which it relates, superseding previous statutes omitted therefrom or repealed thereby, so that anyone subject to its provisions may look to the Code alone with safety and confidence, and without resorting to the previous statutes except to explain contradictions and ambiguities. However, we agree with another Texas appellate court which wrote more recently: We are aware of the cases holding that the enactment of a revision or a codification of a statute prevents the court from looking to the prior repealed statute unless an ambiguity or contradiction exists on the face of the statute. This is simply a restatement of the general rule that the intent of a statute may not be inquired into if the statute is clear on its face. We believe that this general proposition cannot be followed when a statute is codified and the legislature explicitly states that no substantive change in the law is intended. Enacting a codified statute, therefore, even if the statute is clear on its face, is not controlling if it results in a substantive change in the law contrary to the direction of the code’s preamble. Bryant v. Metropolitan Transit Authority, 722 S.W.2d 738, 740 (Tex.Civ.App.-Houston [14th Dist.] 1986, no writ) (citations omitted). Further, the Legislature in the Code Construction Act specifically allows us to look to former statutory provisions in construing a statute, whether or not the statute is ambiguous. Tex. Gov't Code Ann. § 311.023(4) (Vernon 1988). . Tex.Gov’t Code Ann. § 323.007(b) (Vernon 1988) (emphasis supplied). . Kelly, Foreward to Proposed Code, reprinted in Tex.Prop.Code Ann., at VIII (Vernon 1984) (emphasis supplied). . Tex.Prop.Code Ann. § 1.001(a) (Vernon 1984) (emphasis supplied). . 1983 Tex.Gen.Laws Ch. 576, § 7, at 3475, 3730. . Hearings Before Senate Committee on Finance on Tex.S.B. 748, 68th Leg. (April 26, 1983) (tape available from Senate Staff Services Office); Floor Debate in the Senate on Tex.S.B. 748, 68th Leg. (May 2, 1983) (tape available from Senate Staff Services Office). . First Nat'l Bank of Eagle Lake v. Robinson, 124 S.W. at 179. . The Bankruptcy Court recognized the harshness of such a rule: The result reached in this decision is undoubtedly harsh, to be sure. No one could relish the thought of a trustee in bankruptcy confiscating wedding rings and watches at the first meeting of creditors. Federal courts must resist the temptation to amend arguably unsatisfactory state legislation. . Tex.Prop.Code Ann. § 42.002(1), (3)(E) (Vernon 1984). . Hickman v. Hickman, 234 S.W.2d at 413; Patterson v. English, 142 S.W. at 19. . See Hickman v. Hickman, 234 S.W.2d at 413-14. . See Tex.Prop.Code Ann. § 42.002(3) (Vernon 1984). . In re Tyler, 2 Bankr.Ct.Dec. (CRR) 1537, 1538 (N.D.Tex.1976): Factors which are important in determining whether the claimed exemption is reasonably necessary are the station in life of the person claiming the exemption; the feasibility of wearing it in day to day activity; its value; and the circumstances under which it was acquired including the financial condition of the debtor at that time. There are others, the list does not purport to be exhaustive. We do not necessarily cite these factors with approval, but merely use them to illustrate the types of questions a court might address in deciding whether jewelry claimed by a debtor meets the reasonable necessity test.

KRUPANSKY, Circuit Judge. Defendant-appellant, Dr. Lee R. Johnson (Johnson), appealed following a bench trial in which he was convicted upon one count of transmitting obscene materials through the mails in violation of 18 U.S.C. § 2252, and fifteen counts of receiving obscene materials through the mails in violation of 18 U.S.C. § 1461. Johnson, an associate professor of history at Memphis State University, is a self-confessed pedophile. Beginning in the mid-1970’s and continuing until October of 1985, Johnson acquired and maintained a sizeable collection of pedophilic materials which included: 100 magazines, 58 books and booklets, 13 reels of film, and numerous drawings. The collection also included advertising brochures that contained sexually explicit photographs of children. Several of the items in the collection remained in the original postmarked envelopes in which they had been received by Johnson from commercial distributors in California, Denmark, Sweden and the Netherlands. In a letter dated July 29, 1983, Johnson came to the attention of postal inspectors by responding to an advertisement contained in Screw Magazine, placed by Postal Inspector Daniel Mihalko (Mihalko) as part of an undercover investigation involving mail obscenity. The advertisement offered the sale of materials depicting “Youthful Interests,” “Fun Farm,” and “Latin Family Fun.” Johnson’s letter stated: “I am interested in family fun and young girls. I will buy 8mm films, magazines and photo sets, (Hard core only). I am over the age of 21, and I am not affiliated with or acting for any censorship or law enforcement agency. All material is intended for my personal use.” Upon receipt of the letter, Mihalko mailed a preprinted order form to Johnson, which he subsequently completed and returned to Mihalko on September 12, 1983. The investigation of Johnson was thereafter assigned to Postal Inspector Dennis Wichterman (Wichterman). In a letter to Johnson postmarked December 14, 1984, Wichterman adopted the fictitious identity of “Jake Wichoff” who represented a company named “Young Tallent [sic] Enterprises.” Wichterman described the fictitious company as a group of entrepreneurs specializing in “the discovery and circulation of new young talent” and invited Johnson to permit the company to mail additional information. Johnson responded in a letter postmarked December 18, 1984, stating that Wichterman’s fictitious organization “sounds like just what I have been looking for ... and if your material is of good quality, I expect to be one of your best customers.... ” Thereafter, Wichterman requested Johnson to specify his needs. Johnson replied by advising Wichterman that he was interested “in purchasing drawings, photographs or films of young girls engaging in various activities with young men, or with their families.” Johnson also solicited from Wichterman the names of anyone in the Memphis area who could supply him with the desired pedophilic material and requested Wichterman to circulate his name to anyone capable of fulfilling his needs. In further correspondence, Wichterman cautioned Johnson that “[p]ostal officials and law enforcement are everywhere.... ” Undeterred by Wichterman’s warning, Johnson responded by suggesting that he would be willing to exchange items from his collection of child pornography, with Wichterman or others, in return for similar materials. In addition, Johnson stated that he would “be interested in making personal contacts with families who share my interest.” At this point, Wichterman changed his identity with Johnson and assumed the fictitious identity of “Daniel” who was held out to be a collector of pedophilic materials and was referred to Johnson by the fictitious “Jake Wicoff.” Johnson responded favorably by letter. In further correspondence, Johnson listed specific magazines and films contained in his collection which he desired to exchange for similar material. Johnson suggested that the two meet in Chattanooga, Tennessee to swap materials because “I don’t want to put anything in the mail,” and requested Wichterman to refer him to someone who would sell him pedophilic materials. In his next letter, Wichterman listed the titles of several magazines in which he believed Johnson would have interest. In refusing Johnson’s suggestion to meet in Chattanooga, Wichterman stated “I don’t know about you but I can’t afford to travel to meet everybody I’m going to trade with.” In addition, Wichterman suggested that it would be safer for Johnson to rent a post office box instead of using his home address. Within fourteen days, Johnson wrote to advise Wichterman that he had rented a post office box and that he possessed certain magazines that Wichterman sought. Agreeing with Wichterman’s claim that he could not financially afford to travel every time that he wished to exchange materials, Johnson stated he would travel to Chattanooga because he was “antsy about putting things in the mail.” Rather than immediately answering Johnson’s letter, Wichterman delayed his next communication for several weeks. In further correspondence with Johnson, Wichterman stated that he had been vacationing in Florida and had reviewed the proposed exchange of pedophilic materials. Wichterman also related a fictitious expectation of a sexual liason with a young girl named “Julie” with whom he had recently become acquainted. In a reply dated June 23, 1985, Johnson stated “I was glad to hear that you were only in Florida [because] I was beginning to think that something was wrong.” In response to Wicht-erman’s . ficticious pursuits with “Julie,” Johnson wrote “I’d like to make personal contact, but with the heat on the way it is I don’t dare to try here, and don’t know how to go about making contact elsewhere. (We have no children ourselves).” Further, Johnson cautioned Wichterman that the child might “blow the whistle[.]” Lastly, Johnson reiterated his desire to expand the size of his collection by either purchasing or trading pedophilic materials, and again requested Wichterman to refer him to someone who would be willing to sell him child pornography. In his following letter dated July 7, 1985, Wichterman described a video tape of a couple and their eight year old child that he hoped to obtain from a collector in Michigan. Wichterman also stated “[A]s far as magazines, yes, I would love to borrow some to photograph and enjoy.” Wichter-man also indicated that he was in the process of creating a video tape of certain magazines he possessed containing sexually explicit photography of children and inquired whether Johnson would be interested in contributing any material. At no time did Wichterman direct Johnson to use the mails to transmit the magazines requested. Shortly thereafter, on July 18, 1985, Wichterman received a plain brown paper package that contained three magazines of sexually explicit photographs of children. The package listed Johnson’s post office box as a return address. Wichterman posted a letter to Johnson wherein he acknowledged receipt of the package, and suggested that he would personally visit Johnson in Memphis during September of 1985. In response to Wicht-erman’s statement that he had received the package, Johnson wrote “I’m glad you got the materials I sent you. I didn’t enclose a note because I didn’t know if that would be prudent — remember, I’m still new at this.” Johnson also agreed to Wichterman’s suggestion that they personally meet at Johnson’s apartment. Further correspondence ensued in which Wichterman and Johnson mutually planned to meet in October of 1985. Wichterman obtained a valid warrant authorizing a search of Johnson’s apartment and, accompanied by other postal inspectors, proceeded to his address on October 2, 1985. Upon meeting with Johnson and entering the apartment, Wichterman identified himself as a postal inspector and served Johnson with the warrant. The other postal inspectors then entered the apartment and a search was conducted that disclosed a substantial collection of child pornography. Johnson thereupon voluntarily admitted that he had mailed a package containing sexually explicit photographs of children to Wichterman, and had consented to a search of his office at Memphis State University which revealed additional pedo-philic materials. On October 3, 1985, a criminal complaint charged Johnson with one count of transmitting child pornography through the mails in violation of 18 U.S.C. § 2252. Johnson was subsequently indicted on October 16, 1985, and entered a plea of “not guilty” on October 23, 1985. A superseding indictment was returned on January 7, 1986, which additionally charged Johnson with seventeen counts of receiving pornography through the mails in violation of 18 U.S.C. § 1461 and 18 U.S.C. § 2. Johnson was subsequently arraigned on January 2, 1986, and pled “not guilty” to all counts. In an opinion filed on August 11, 1986, the district court determined that Johnson was guilty on all counts. Johnson was subsequently sentenced to a five year period of probation. He thereafter filed a timely notice of appeal to this court. On appeal, Johnson raised four arguments. In regards to his conviction under 18 U.S.C. § 2252, Johnson contended that the government failed to prove beyond a reasonable doubt that he was predisposed to sending obscene material through the mails. Secondly, Johnson argued that the investigatory tactics of the postal inspectors were so outrageous as to constitute a deprivation of due process of law. As to his convictions under 18 U.S.C. § 1461, Johnson urged that the district court incorrectly concluded that this statute prohibited a person from causing obscene materials to be delivered to him through the mails. And lastly, Johnson alternatively argued that he lacked the requisite scienter to violate 18 U.S.C. § 1461. Upon appellate review of the sufficiency of the evidence supporting a criminal conviction, this court must reverse, only if, based on the evidence, “a reasonable mind could not find guilt beyond a reasonable doubt.” United States v. Stull, 743 F.2d 439, 442 (6th Cir.1984), cert. denied, 470 U.S. 1062, 105 S.Ct. 1779, 84 L.Ed.2d 838 (1985). See also Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The evidence must be viewed in the light most favorable to the government. United States v. Robinson, 763 F.2d 778, 784 (6th Cir.1985); Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89. Johnson first argued that the conduct of the Government constituted entrapment. Specifically, Johnson urged that the Government failed to establish that he was predisposed to violate 18 U.S.C. § 2252 beyond a reasonable doubt. The defense of entrapment “focus[es] on the intent or predisposition of the defendant to commit the crime.” Hampton v. United States, 425 U.S. 484, 488, 96 S.Ct. 1646, 1649, 48 L.Ed.2d 113 (1976) (quoting United States v. Russell, 411 U.S. 423, 429, 95 S.Ct. 1637, 1641, 36 L.Ed.2d 366 (1973)). “It is only when the Government's deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play.” Russell, 411 U.S. at 436, 93 S.Ct. at 1645, 36 L.Ed.2d at 376. If the lack of predisposition is apparent from the uncontradicted evidence, entrapment can be determined as a matter of law. United States v. Silva, 846 F.2d 352, 354-55 (6th Cir.1988). United States v. Thoma, 726 F.2d 1191 (7th Cir.1984), cert. denied, 467 U.S. 1228, 104 S.Ct. 2683, 81 L.Ed.2d 878 (1984). However, once the issue of predisposition is in dispute, the Government must prove beyond a reasonable doubt that the defendant was predisposed to commit the offense. United States v. McLernon, 746 F.2d 1098 (6th Cir.1984). Predisposition has been defined as “the defendant’s state of mind before his initial exposure to government agents.” McLernon, 746 F.2d at 1112 (quoting United States v. Kaminski, 703 F.2d 1004, 1008 (7th Cir.1983)). Factors relevant in determining the defendant’s state of mind include; the character or reputation of the defendant, including any prior criminal record; whether the suggestion of the criminal activity was initially made by the Government; whether the defendant was engaged in the criminal activity for profit; whether the defendant evidenced reluctance to commit the offense, overcome only by repeated Government inducement or persuasion; and the nature of the inducement or persuasion supplied by the Government. McLernon, 746 F.2d at 1112, (quoting Kaminski, 703 F.2d at 1008). The immediate record was replete with evidence from which the district court could have reasonably concluded that the above factors had been proven beyond a reasonable doubt. The evidence demonstrated that Johnson actively pursued his interest in expanding his collection of pedophilic materials, and that he used the mail in furtherance of this purpose. For approximately ten years, Johnson had used the mail to place his orders and receive child pornography. In fact, on one occasion, Johnson learned that the United States Customs Bureau had confiscated one of his overseas orders. However, this did not deter him from continuing to use the mails to expand his collection of child pornography. Additional insight into Johnson’s character can be gleaned from his letters with Wichterman. Johnson expressed great interest in Wichterman’s fictitious relationship with a young girl named “Julie.” In fact, Johnson indicated that he would be interested in developing sexual contact with a minor similarly inclined. Johnson also cautioned Wichterman to be careful because the young girl could “blow the whistle” on Wichterman. Clearly, Johnson’s character and reputation revealed a complete disregard to abide by the law in pursuit of his passion for child pornography. Furthermore, Johnson was not seduced to criminal activity by repeated government inducements. Johnson came to the attention of postal inspectors by voluntarily responding to an advertisement placed in Screw Magazine. Johnson also was the first to express a desire to exchange pedo-philic materials. In fact, Johnson disregarded the advice given by postal inspector Wichterman that law enforcement agents were everywhere who could discover their correspondence and any exchange of pedophilie materials. While Johnson presented some reluctance to place obscene material in the mail, the mere suggestion of a possible video cassette composed of pictures from various magazines was sufficient to prompt Johnson to voluntarily seek participation. This is unlike the type of repeated government inducement found in McLemon, 746 F.2d at 1113-14. In McLemon, the government agent proposed a profitable business arrangement for marketing and distributing illegal drugs as an inducement for defendant’s assistance in organizing the proposed traffic in illegal drugs which defendant repeatedly refused prior to his consenting to participate in the conspiracy. The government agent also exploited the Indian heritage of the “blood brothers” relationship that had developed between the two prior to the proposed drug transaction and professed a death threat against him to further stimulate the defendant to participate in the conspiracy. See also Silva, at 354-58. The evidence, in the present case, reflected that far from being coerced by government agents, Johnson was driven by his own unyielding desire to expand his pedophilie collection. Although Johnson did not have a financial stake in the criminal activity, he was profiting from the expansion of his library of child pornography. It is clear that Johnson’s predisposition to enlarge his collection at any cost developed long before his correspondence with postal inspectors. Accordingly, it is apparent from the record taken in its entirety that the district court could have rationally concluded beyond a reasonable doubt that Johnson was predisposed to violating 18 U.S.C. § 2252. As a result, Johnson’s defense of entrapment was misplaced. Johnson’s charge that his conviction of violating 18 U.S.C. § 2252 was offensive to the Due Process Clause of the Fifth Amendment was equally without merit. Johnson urged that he was denied due process of law because the government employed fundamentally unfair investigative tactics which amounted to outrageous government conduct. The Supreme Court in United States v. Russell, 411 U.S. 423, 431, 93 S.Ct. 1637, 1642, 36 L.Ed.2d 366 (1973) indicated that some conduct of law enforcement agents might be “so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” Id. The Sixth Circuit has defined four factors to be taken into consideration when determining if police conduct impinged constitutional due process protections. These factors are: (1) the need for the type of government conduct in relationship to the criminal activity; (2) the preexistence of a criminal enterprise; (3) the level of the direction or control of the criminal enterprise by the government; (4) the impact of the government activity to create the commission of the criminal activity. United States v. Robinson, 763 F.2d 778, 785 (6th Cir.1985); United States v. Norton, 700 F.2d 1072, 1075 (6th Cir.1983), cert. denied, 461 U.S. 910, 103 S.Ct. 1885, 76 L.Ed.2d 814 (1983); United States v. Brown, 635 F.2d 1207, 1213 (6th Cir.1980). On the facts presented by this record, there was clearly no violation of due process. Because the transmission of child pornography through the mails occurs within a shroud of secrecy, it is apparent that the use of an advertisement in Screw Magazine and personal correspondence by a postal inspector posing as a pedophilic collector was justified to detect and investigate violations of 18 U.S.C. § 2252. The record contained substantial evidence that Johnson was engaged in a preexisting enterprise to collect child pornography through the mail. Moreover, there is no evidence that Wichterman exercised any control over the criminal activity with which Johnson was charged, or that Wichter man’s tactics disproportionately increased the incidence of transmitting obscene materials through the mail. It was Johnson who first solicited Wichterman to exchange pedophilic material. Accordingly, the postal inspector’s conduct was not so fundamentally unfair and outrageous as to violate Johnson’s due process rights. See United States v. Thoma, 726 F.2d 1191 (7th Cir.1984) cert. denied, 467 U.S. 1228, 104 S.Ct. 2683, 81 L.Ed.2d 878 (1984); United States v. Kabala, 680 F.Supp. 1254 (N.D.Ill., 1988). Turning to his convictions under 18 U.S.C. § 1461, Johnson argued that this statute did not apply to recipients of obscene material for use exclusively within the privacy of a recipient’s home; consequently, he committed no crime. Instead, Johnson contended that § 1461 applied only to individuals who intended to circulate the obscene material relying heavily upon the opinion of a district court in United States v. Sidelko, 248 F.Supp. 813 (M.D.Pa.1965), to support his proposition to disregard the clear language of the statute. Johnson was convicted under the portion of 18 U.S.C. § 1461 which in pertinent part states: Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device or substance; ... Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier. Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section or section 3001(e) of title 39 to be nonmailable, or knowingly causes to be delivered by mail according to the direction thereon, ... shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense, and shall be fined not more than $10,000 or imprisoned not more than ten years, or both, for each such offense thereafter. Id. (emphasis added). A well settled rule of statutory interpretation directs the court in the first instance to examine the language of the statute. “[0]nly the most extraordinary showing of contrary intentions from [the legislative history] would justify a limitation on the ‘plain meaning’ of the statutory language. When we find the terms of a statute unambiguous, judicial inquiry is complete, except in ‘rare and exceptional circumstances.’ ” Garcia v. United States, 469 U.S. 70, 75, 105 S.Ct. 479, 482, 83 L.Ed.2d 472 (1984) (citations omitted). See also United States v. Premises Known as 8584 Brown Road, 736 F.2d 1129 (6th Cir.1984). This court is of the opinion that the district court in Sidelko did not correctly apply this well established legal principle. It is evident from a review of the plain language of the statute that the passage “whoever ... knowingly causes to be delivered by mail according to direction” is clearly broad enough to encompass persons who order and receive obscene material for personal use and consumption and is not limited to persons who only place obscene material in the mail. The statute is unambiguous as to this conclusion. Consequently, this court is precluded from further investigation into other possible interpretations of the statute, unless there is any extraordinary showing of contrary intentions in the legislative history. In reviewing the legislative history of § 1461, this court has found no expressed legislative intent to exclude persons who order and receive obscene material in the mail from the dictates of the statute. Although the statute was amended in 1958 to replace the term “whoever knowingly deposits ” for “whoever knowingly uses ” to resolve jurisdictional problems, there is no indication in the conference or senate reports which suggests an intent contrary to the plain language of the statute. S.Rep. No. 1839 and H.R. Conf.Rep. No. 2624, 85th Cong., 2d Sess., reprinted in 1958 U.S.Code Cong. & Admin.News 4012-4018. This conclusion is consistent with the Ninth Circuit’s interpretation of § 1461. In United States v. Hurt, 795 F.2d 765 (9th Cir.1986), modified on other grounds, 808 F.2d 707 (1987), cert. denied, — U.S. -, 108 S.Ct. 69, 98 L.Ed.2d 33 (1987), the court determined the language “whoever knowingly uses the mails” to be intended to include persons who order and receive obscene material through the mail for their personal use and consumption. Consequently, Johnson’s conduct of ordering and receiving child pornography in the mail for his private use was within the plain language of the statute. Lastly, Johnson suggested that he did not possess the requisite scienter to violate 18 U.S.C. § 1461 because the government failed to prove he had knowledge of the character or nature of the advertisements and brochures received by him in the mail. Section 1461 makes it a crime if a person “knowingly causes to be delivered by mail” any obscene material. 18 U.S.C. § 1461. In Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), the Court held that the defendant had the requisite scienter if he knew of the nature and character of the materials. See Hurt, 795 F.2d at 773; United States v. Marchant, 803 F.2d 174, 176 (5th Cir.1986). Viewing the record in the light most favorable to the government, it is apparent that Johnson possessed sufficient knowledge to violate 18 U.S.C. § 1461. The record disclosed that Johnson was an experienced collector of pedophilia with an uncanny awareness of the practices and procedures employed by commercial distributors of obscene materials. For example, although claiming that he neither ordered nor expected to receive advertising brochures and pamphlets, Johnson testified that he was aware that: (1) commercial distributors of pornography were violating the law; (2) past orders placed by him with commercial distributors of child pornography would insure future receipt of mail advertisements promoting obscene materials, and the circulation of his name amongst other commercial distributors of obscenity; (3) absent his objection his name would remain upon those various mailing lists; and (4) the advertisement he was likely to receive would contain sexually explicit photographs of children. “When the receipt occurs at the invention or with the consent of the possessor, it is more difficult to camouflage the fulsome scent of forbidden knowledge.” Marchant, 803 F.2d at 177. In combination with the fact that he avidly collected pedophilia for a period of approximately ten years prior to his apprehension, the direct evidence of Johnson’s knowledge of the practices and procedures commonly employed by commercial distributors of obscene materials in marketing their merchandise proved him to be a sophisticated and willing participant who was predisposed to violating the law to further his activities. Therefore the district court properly concluded that Johnson possessed the requisite scienter to have violated § 1461. Accordingly, the judgment of the district court that Johnson was guilty of sending child pornography through the mails in violation of 18 U.S.C. § 2252, and guilty of fifteen counts of causing obscene materials to be delivered through the mails in violation of 18 U.S.C. § 1461 is AFFIRMED. . In his communication with Johnson, Wichter-man always used a fictitious identity which was changed over the course of the investigation. Thus, for clarity, he will hereinafter be referred to as "Wichterman.” . Two of the seventeen additional counts of receiving pornography in violation of 18 U.S.C. § 1461 and 18 U.S.C. § 2 were dismissed prior to the commencement of Johnson's trial. . Section 2252 of Title 18 stated in pertinent part that: (a) Any person who— (1) knowingly ... mails any visual depiction, if— (A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (B) such visual depiction is of such conduct; shall be [guilty of a criminal offense]. 18 U.S.C. § 2252. . Johnson’s contention that pedophilie materials received by him did not demonstrate a predisposition to commit the crime of sending pedophilic materials was without merit. In United States v. Gantzer, 810 F.2d 349, 352 (5th Cir.1987), the court held that defendant’s "propensity to receive pornographic—though not necessarily legally obscene—materials through the mail is probative of his predisposition to send legally obscene photographs.” MERRITT, Circuit Judge, dissenting. I disagree with the majority's conclusion that 18 U.S.C. § 1461 permits the conviction of one who receives in the mail child pornography for personal use rather than for circulation to others. My examination of the statutory language and legislative history of § 1461 reveals that the Ninth Circuit erred in United States v. Hurt, 795 F.2d 765 (1986), modified on other grounds, 808 F.2d 707, cert. denied, — U.S. -, 108 S.Ct. 69, 98 L.Ed.2d 83 (1987), when it upheld the conviction of a recipient of obscene material. The reasoning is more persuasive in United States v. Sidelko, 248 F.Supp. 813 (M.D.Pa.1965), which concluded that Congress did not intend for § 1461 to apply to persons who order and receive obscene material for personal use. In determining the meaning of a statute, courts must first look to the plain language adopted by Congress. If the statute’s language is unambiguous, “ordinarily it is to be regarded as conclusive unless there is ‘a clearly expressed legislative intention to the contrary.’ ” Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 110, 103 S.Ct. 986, 990, 74 L.Ed.2d 845 (1983) (quoting Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980)). The relevant language of § 1461 provides: Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared ... to be nonmailable, or knowingly causes to be delivered by mail according to the direction thereon ... or knowingly takes any such thing from the mails for the purpose of circulating or disposing thereof ... shall be fined not more than $5,000 or imprisoned not more than ten years.... (emphasis added). Counts 2-16 of the indictment in this case state that the defendant “did knowingly cause to be delivered by mail according to the directions thereon” several obscene items. App. 13-21. The question before us is whether Congress intended for this “cause” provision of § 1461 to apply to recipients, as well as to senders, of obscene material. The language of the “knowingly causes to be delivered” provision does not specify whether its application is limited to senders. On the one hand, the provision may apply to receivers of obscene material for personal use because, in one sense, they “cause to be delivered” certain materials when they request distributors to mail obscene materials. On the other hand, the statute can be interpreted to apply only to senders of obscene material and not to receivers. It is the sender who literally “causes to be delivered by mail” material which he himself puts in the mail or causes another to put in the mail. The next significant phrase contained in the eighth paragraph of § 1461 suggests that the “knowingly causes to be delivered” provision applies only to senders. The criminal act described in this paragraph is: “or knowingly takes any such thing from the mails for the purpose of circulating....” This provision obviously applies to receivers of obscene material; but not all receivers, just those who intend to circulate the material. Since this provision separately and explicitly deals with receivers, it is certainly arguable that the previous provisions deal only with senders. The words “according to the direction thereon,” following “knowingly causes to be delivered by mail” lead to the same conclusion because receivers’ “directions” or requests, are not on the mailed material. If receivers are contemplated by this provision, then these five, words are meaningless. By making the words “according to direction thereon” apply to senders only, we can make some sense of the language. The address placed on the mailed material by the sender would constitute the “direction thereon” under the statute. I. This ambiguity in the plain meaning of the language leads me to the view that an investigation of the legislative history on this point may illuminate the intended meaning. The majority states that its examination of § 1461’s legislative history revealed “no expressed legislative intent to exclude persons who order and receive obscene material in the mail.” Opin. 13. My research into the legislative history of the “knowingly causes to be delivered” provision reveals that Congress did not intend for it to cover receivers. Section 1461 was amended in 1958 to include the “knowingly causes to be delivered” provision. Previously, the applicable paragraph of § 1461 was divided into a “sender” clause and a “receiver” clause: [1] Whoever knowingly deposits for mailing or delivery, anything declared by this section to be nonmailable, or [2] knowingly takes the same from the mails for the purpose of circulating ... shall be fined not more than $5,000 or imprisoned. ... 18 U.S.C. § 1461 (1952); H.R.Rep. No. 1614, 85th Cong., 2d Sess. 7-8 (1958). In 1953, the Tenth Circuit in United States v. Ross, 205 F.2d 619, interpreted the sender provision of § 1461 as limiting prosecution of those who mailed obscene material to jurisdictions in which the mail was deposited. The court affirmed dismissal of an indictment seeking to prosecute defendants in Kansas, where obscene mail sent by them was delivered. Defendants were prosecuted in Kansas because their earlier prosecution in California, where the mail was deposited, was dismissed when a court ruled that the mailed material was not obscene. H.R.Conf.Rep. No. 1614, 2624, 85th Cong., 2d Sess., reprinted in 1958 U.S. Code Cong. & Admin.News 4016. The Tenth Circuit held that the sender provision did not establish a continuing crime and thus the offense occurred in the jurisdiction where the deposit was made. Ross, 205 F.2d at 620-21. The court explained: We think there is a clear distinction between a deposit for mailing or delivery and the use of the mails_ [T]he unlawful act defined in § 1461 is the deposit for mailing and not a use of the mails which may follow such deposit. That act is complete when the deposit is made and is not a continuing act. Id. at 621. As a direct response to the Ross opinion, Congress amended § 1461’s sender provision for the explicit purpose of making the offense of “deposits for mailing” a continuing offense. See H.R.Rep. No. 1614, 85th Cong., 2d Sess. 3-4; S.Rep. No. 1839, 85th Cong., 2d Sess. 2-4, reprinted in 1958 U.S. Code Cong. & Admin.News 4013-14; H.R. Conf.Rep. No. 2624, reprinted in 1958 U.S. Code Cong. & Admin.News 4016-17. Congress sought to authorize the prosecution of depositors in jurisdictions where the material was delivered, or where it was mailed. Id. Another impetus for expanding the venue of the sender provision was the Supreme Court’s decision in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). 104 Cong.Rec. 1396 (1958). In Roth, Justice Brennan announced that an appropriate standard for judging obscenity is “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” Id. at 489, 77 S.Ct. at 1311 (emphasis added). Congress wanted defendants prosecuted as “smut peddlers” in districts where obscene material was delivered because these were the areas harmed by the offense. 104 Cong.Rec. 9530. As explained below, the sender provision amendment was never intended to apply to receivers of obscene material. On the contrary, Congress viewed receivers— children and “adults of low mentality” — as the victims of solicited and unsolicited obscene materials. 104 Cong.Rec. 8994. In early 1958, both the House and the Senate introduced bills for the § 1461 amendment. The bills were similar, but differed in one major respect. The Senate bill, introduced by Senator Kefauver, sought to permit prosecution “for the sending of nonmailable matter through the United States mails, not only at the place where the mail is deposited, as under the existing law, but also at the place where the mail is received.” 105 Cong.Rec. 6865. The House bill intended to expand the venue of the sender provision to include not only the judicial districts where the mail was deposited and delivered, but also the districts in which the mail passed through en route to its destination. 104 Cong.Rec. 8991. The House bill’s language specifically adopted the language suggested in Ross, that whoever “uses the mails” would commit a continuing offense, allowing prosecution in several districts. Id.; H.R.Rep. No. 1614 at 7. The House Bill contained the specific provision disputed in this case, “knowingly causes to be delivered.” Id. No significant changes were proposed for the receiver provision. The Senate version also contained the “knowingly causes to be delivered” phrase. S.Rep. No. 1839 at 1, 1958 U.S.Code Cong. & Admin.News 4012. Like the House, the Senate did not propose changes for the receiver provision. After a conference between the House and Senate, Congress passed the House version of the sender provision amendment. See H.R. Rep.Conf. No. 2624 at 1; 104 Cong.Rec. 17,832. The majority states that it gleaned its interpretation of the legislative history of § 1461 from the Senate and Conference Reports. Opin. 13. Although it is true that the reports do not indicate that receivers are excluded from the sender provision amendment, it is also true that the only purpose for the amendment was to expand the venue of the former sender provision. There is no indication whatsoever in any of the reports that receivers would be included in the sender provision amendment. The Senate Report states that the purpose of the proposed amendment is to: make it possible to prosecute violators of section 1461 of title 18 of the United States Code (mailing of obscene or crime-inciting material) not only at the place at which the objectionable matter is mailed, but also at the place of address or delivery. S.Rep. No. 1839 at 2, 1958 U.S.Code Cong. & Admin.News 4013 (emphasis added). “Violators” are those who mail obscene material. The report’s explanation that the amendment was brought to avoid the Ross problem further reveals that the “violators” in this context are the senders, and not the receivers, of obscene material. Id. at 2-4, 1958 U.S. Code Cong. & Admin. News 4013-4014. Nowhere in the Senate Report is there any mention of an interest in expanding the sender provision’s coverage to include receivers. The report clearly indicates that the Senate viewed the senders as the evildoers, and the receivers as the victims: “The main evil to be com-batted is the harm done to those who are exposed to obscene material at the point of receipt.” Id. at 3, 1958 U.S.Code Cong. & Admin.News 4013. Letters accompanying the report also show that the proposed amendment only applied to senders. Representative Celler’s letter states: This bill will amend section 1461 ... so as to make the deposit of obscene matter in the mails a use of the mails.... The importance of this decision [i?oss] rests in the fact that it is sometimes difficult to obtain a conviction for the mailing of obscene matter in certain jurisdictions. Id. at 4, 1958 U.S.Code Cong. & Admin. News 4014 (emphasis added). Similar to the Senate Report, the House Report also states that the purpose of the amendment is to: make it possible to prosecute violators of section 1461 ... (mailing of obscene or crime-inciting material)_ H.R.Rep. No. 1614 at 2 (emphasis added). Accompanying letters and statements to the Report also support the view that the bill would expand the venue for obscenity senders and not receivers. The General Counsel of the Post Office Department’s position is included in the Report: The purpose of the bill ... is that persons mailing obscene literature ... may be prosecuted in the district in which the mailing took place, in any district through which the mail passed, and in the district where it is delivered. Id. at 6 (emphasis added). The Conference Report clearly states that § 1461 was being amended “to make the mailing of obscene matter a continuing offense.” H.R.Conf.Rep. No. 2624 at 3, reprinted in U.S. Code Cong. & Admin. News 4016. Explaining that the amendment was a direct response to Ross, the report states: “[t]he importance of this decision rests in the fact that it is sometimes difficult to obtain a conviction for the mailing of obscene matter in certain jurisdictions.” Id. (emphasis added). The conference agreed on the original House bill indicating that the “purveyors” of obscene material committed a continuing crime when they used the mail for their deeds. Id. at 1, 1958 U.S.Code Cong. & Admin.News 4016. The numerous pages of congressional statements regarding both houses’ proposals also reveal that there was virtually no opposition to the proposed amendment to the sender provision of § 1461. Over fifteen congressmen made lengthy statements on the House and Senate floors in favor of the amendment. The statements reveal a uniform belief that the amendment to the sender provision would expand the jurisdictions in which the “obscenity merchants” could be prosecuted. 104 Cong. Rec. 8991. Senator Kefauver’s statements explain why the sender provision was amended, and to whom the amendment applied: This restriction [from Ross ] has seriously impaired the ability of the Post Office Department and the Department of Justice to fight the interstate pornography racket. The greatest impact on the community is often felt at the place where the objectionable material is received. It is frequently in the community where the matter is received that the largest number of complaints are made and the greatest impetus to prosecution exists. A heavy percentage of objectionable material is being deposited in the mails in the Los Angeles area, resulting in the tunneling of a large number of prosecutions into one already overcrowded federal jurisdiction. Many of these cases have been acted on by one judge in the Southern California Federal jurisdiction, with the result that his interpretation of the law has become almost a controlling factor on a national footing in the enforcement of section 1461. The proposed change in the law simply implements section 3237 of Title 18, United States Code Annotated, which provides for prosecution for material sent through the mail “in any district from, through, or into which such commerce or mail matters move.” The strengthening of the criminal statute with respect to the sending of obscene or objectionable matter ... is necessitated by the indiscriminate use of commercial mailing lists by persons in the mail-order pornography business. 104 Cong.Rec. 6865 (emphasis added). The remarks of Representative Sullivan explain that after Ross, [sjmart smut peddlers now base their operations largely in Los Angeles and New York City. Experience has shown them that courts and juries there are lenient with them. In short, they are free to shop around and settle in a district where the judges or jurors are broadminded about their sleazy kind of business. This year, Congress is going to try to plug some of these loopholes. Id. at 9530. Representative Saylor stated: I intend to support it [the bill] if only to serve notice on the purveyors of obscenity that Congress resents their diabolical business and is determined to stop it. Id. at 7672 (emphasis added). And Representative Feighan explained: Certainly, while the technical crime may have been consummated in a distant location by the deposit of such pornography in the mail, the impact and ramifications of this vicious criminal act were found in the minds and morals of those who were subjected to it upon receipt.... Merely to permit the moral, God-fearing members of the community to pass judgment upon purveyors of filth who would destroy the homes of a community ... should strike fear in no one’s heart other than those who fear justice and the loss of degrading profit in human misery. Id. at 8994 (emphasis added). The numerous floor statements of members of Congress reveal that they were interested in prosecuting the purveyors or senders of obscene material, and not the receivers. See, e.g., id. at 19,842, 17,832, 15,611, 9530, 8991-94, 7672, 6626. Hearings were also conducted on the House’s proposed amendment to the sender provision of § 1461 at which 25 witnesses testified. Mailing of Obscene Matter, 1958: Hearings on H. 6239 et al. Before the Subcomm. No. 1 of the House Comm. on the Judiciary, 85th Cong., 2d Sess. 1-100 (1958). Twenty-two of the witnesses strongly favored the proposed amendment. Those who opposed the bill, such as the American Book Publishers Council, objected to the possibility that a jurisdiction with a narrow view of obscenity could determine the legality of a work for all other jurisdictions in the country. See id. at 57. None of the witnesses’ statements indicate that the proposed venue amendment would apply to receivers of obscene material. In sum, the reports, floor statements and hearing testimony uniformly reveal that in amending the sender provision of § 1461, Congress was simply attempting to expand the venue for prosecutions of “smut peddlers.” Nowhere in this voluminous legislative history is there even mention of the view that the amendment should also apply to receivers of obscenity. The receiver provision itself was left untouched by the sender provision amendment. This study reveals that the majority is attempting to create a new offense that Congress did not intend to criminalize — receipt of obscene material for personal use. This interpretation of § 1461 through its legislative history is reinforced by the fact that nine of the counts in the indictment here charge that the receiver “did knowingly cause to be delivered by mail” advertisement sheets, that were themselves obscene, for obscene literature. App. 13-20. Congressional statements made during floor discussion of the sender provision amendment indicate that Congress specifically did not intend to criminalize the receipt of advertisements for obscene material. See 104 Cong.Rec. 15,610, 8991-92, 6865. Recipients of these advertisements were viewed as the victims of a nationwide obscenity sales campaign. Representative Reuss explained that Americans are being given the “hard sell” to buy obscene photographs and movies.... \D ]irect-mail advertisements — often more provocative than the product they peddle — are sent to our teen-agers each year. To date, no one, from post-office official to parent, has been able effectively to curb this mushrooming trade in pornography — no one, although it is abhorrent to us all. Id. at 8992 (emphasis added). Representative Keating stated: It is estimated 50 million direct-mail advertisements for such [obscene] material were circulated into American homes last year. Promoters are raking in enormous profits, often apparently in the millions. Their methods are devious and deceptive. They prey upon the innocent and unsuspecting. Their filthy produce is contaminating young minds all over our country. Id. at 8991 (emphasis added). Applying this legislative history to the facts of this case demonstrates that Congress never envisioned that the victim’s conduct in receiving advertisements for obscene material would be criminal. II. Counts 2-16 of the indictment charge defendant with violating 18 U.S.C. § 2 as well as § 1461. Since mere receipt of obscene material for personal use is not a violation of § 1461, the government must show that defendant violated § 2. Section 2 provides: (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal. Although in its briefs the government has not described exactly how defendant violated § 2, presumably the theory is that defendant’s mere receipt of the obscene mate rial shows that he aided and abetted the sending of the material — a violation of § 1461. The legislative history discussed above reveals that Congress intended the prosecution of senders of obscene material or of receivers who circulate the material. Defendant does not fall into either category. His conviction under § 2 for aiding and abetting the sending of obscene material by his mere receipt contravenes Congress's intention that only certain receivers can be prosecuted under § 1461 — those who circulate the material. This situation is similar to Gebardi v. United States, 287 U.S. 112, 123, 53 S.Ct. 35, 38, 77 L.Ed. 206 (1932). In Gebardi, the Court reversed the conviction of a female defendant who allegedly conspired to violate the Mann Act by consenting to her transportation across state lines. Applying Wharton’s Rule, the Court reasoned that Congress did not envision that a participant or victim in the Mann Act crime could be indicted for conspiracy to commit the crime — even if she consented. Id. The Court explained: [W]e perceive in the failure of the Mann Act to condemn the woman’s participation in those transportations which are effected with her mere consent, evidence of an affirmative legislative policy to leave her acquiescence unpunished. We think it a necessary implication of that policy that when the Mann Act and the conspiracy statute came to be construed together, as they necessarily would be, the same participation which the former contemplates as an inseparable incident of all cases in which the woman is a voluntary agent at all, but does not punish, was not automatically to be made punishable under the latter. It would contravene that policy to hold that the very passage of the Mann Act effected a withdrawal by the conspiracy statute of that immunity which the Mann Act itself confers. Id. (emphasis added). Applying Gebardi’s reasoning and Wharton’s Rule to this case, it is obvious from the legislative history that Congress only intended to criminalize a certain kind of receipt — when the receiver intended to criminalize the material. If the receiver can be convicted of violating § 2 by aiding and abetting the sending of obscene material, then a different type of receipt would be criminalized. Congress’s intention was clear: senders or receivers who circulate violate § 1461. The government’s reformulation of a § 1461 offense through § 2 contradicts the result Congress explicitly intended. III. I would not only reverse defendant’s convictions under 18 U.S.C. §§ 1461 and 2, but I would also reverse his conviction under § 2252 and remand the case for a new trial on this charge. The spillover effect of the voluminous evidence admitted to prove counts 2-16 of the indictment severely prejudiced defendant’s entrapment defense for the § 2252 charge. Given the extremely strong entrapment showing defendant has made, I would remand for a new trial on the § 2252 offense.

SWAYNE, Circuit Justice. This is a prosecution under the act of congress of the 9th of April, 1866 [14 Stat. 27], entitled “An act to protect all persons in the United States in their civil rights, and to furnish the means for their vindication.” The defendants having been found guilty by a jury, the case is now before us upon a motion in arrest of judgment. Three grounds are relied upon in support of the motion. It is insisted: I. That the indictment is fatally defective. II. That the case which it makes, or was intended to make, is not within the act of congress upon which it is founded. III. That the act itself is unconstitutional and void. I. As to. the indictment, if either count be sufficient, it will support the judgment of the c-ourt upon the verdict. Our attention will be confined to the second count. That count alleges that the defendants, being white persons, “on the 1st of May, 1866, at the county of Nelson, in the state and district of Kentucky, at the hour of eleven of the clock in the night of the same day, feloniously and burglariously did break and enter the dwelling house there situate of Nancy Talbot, a citizen of the United States of the African race, having been born in the United States, and not subject to any foreign power, who was then and there, and is now, denied the right to testify against the said defendants, in the courts of the state of Kentucky, and of the said county of Nelson, with intent the goods and chattels, moneys and property of tlie said Nancy Talbot, in the said dwelling bouse then and there being, feloniously and burglariously to steal, take, and carry away, contrary to the statute in such case made and provided, and against the peace and dignity of the United States.” The objection urged against this count is, that it does not aver that “white citizens” enjoy the right which it is alleged is denied to Nancy Talbot. This fact is vital in the case. Without it our jurisdiction cannot be maintained. It is averred that she is a citizen of the United States, of the African race, and that she is denied the right to testify against the defendants, they being white persons. Section CC9 of the Code of Civil Practice of Kentucky gives this right to white persons under the same circumstances. This is a public statute, and we are bound to take judicial cognizance of it. It is never necessary to set forth matters of law in a criminal pleading. The indictment is, in legal effect, as if it averred the existence and provisions of the statute. The enjoyment of the right in question by white citizens is a conclusion of law from the facts stated. Averment and proof could not bring it into the case more effectually for any purpose than it is there already. 1 Chit. Cr. Law, 18S; 2 Bos. & P. 127; 2 Leach, 942; 1 Bish. Cr. Proc. §§ 52, 53. This right is one of those secured to Nancy Talbot by the first section of this act. The objection to this count cannot be sustained. II. Is the offense charged, within the statute? The first section enacts: — “That all persons born in the United States, and not-subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery,” . . . . “shall have the same right in every state and territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, sell and convey real and personal property; and to full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by. white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.” The second section provides:—“That any person, who under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any state or territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person having at any time been held in the condition of slavery,” .... “or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor,” &c. The third section declares:—“That the district courts of the United States within their respective districts, shall have, exclusively of the courts of the several states, cognizance of all crimes and offenses committed against the provisions of this act, and also, concurrently with the circuit courts of the United. States, of all causes, civil and criminal, affecting persons who are denied or cannot enforce in the courts or judicial tribunals of the state where they may be, any of the rights secured to them by the first section of this act; and if any suit or prosecution, civil or criminal, shall be commenced in any state court against such person, for any cause whatsoever,”.“such defendant shall have the right to remove such cause for trial to the proper district or circuit court in the manner prescribed by the act relating to habeas corpus, and regulating judicial proceedings in certain cases, approved March 3, 1863, and all acts amendatory thereof.” It will be observed that jurisdiction is given to this court “of all causes, civil and criminal,” affecting persons who are denied or cannot enforce in the local state courts “any of the rights secured by the first section of this act.” The denial of any one is as effectual as the denial of any other or of all. But it is said the cause set forth in the indictment is not one affecting Nancy Talbot, in the sense of the law, and that therefore this court has no jurisdiction. U. S. v. Ortega, 11 Wheat. [24 U. S.] 467, is relied upon as authority for this proposition. That case is as follows: The constitution provides (article 3, § 2) that—“In all cases affecting ambassadors, other public ministers and consuls and those in which a state shall be a party, the supreme court shall have original jurisdiction.” Ortega was indicted in the circuit court for “infracting the law of nations by offering violence to the person” of Salmon, the charge d’affaires of Spain in the United States. The judges of the circuit court were opposed in opinion upon two questions, which were thereupon certified to the supreme court. They were: (1) Whether the case was one affecting a public minister within the meaning of the constitution; (2) and whether in such cases the jurisdiction of the supreme court is exclusive. The supreme court decided only the first question. It was held that the case did not affect the charge d’affaires. This rendered it unnecessary to decide the other question, and it is still unsettled. It will be observed that the language of the statute is different. It is “causes, civil and criminal,” and not “eases.” Burrill, in his Law Dictionary, thus defines “cause”: “The origin or foundation of a thing, as of a suit or action; a ground of action. 1 Const. 470.” The phrase “causes, civil and criminal,” must be understood in the sense of causes of civil action and causes of criminal prosecution. These do unquestionably affect the plaintiff in the one’ case, and the party against whose person or property the crime is committed in the other. The soundness and authority of the judgment in the case of Ortega are not questioned; but it is by no means true, as a universal proposition, that none are affected in the legal sense of the term, by a case, but those who are parties to the record. The solution of the question must always depend upon the circumstances. In Osborn v. Bank of the United States, 9 Wheat. [22 U. SJ 584, the court said: “If a suit be brought against a foreign minister, the supreme court has original jurisdiction, and this is shown in the record; but suppose a suit be brought which affects the interests of a foreign minister, or by which his servant, or his secretary, becomes a party to the suit, but the actual defendant pleads to the jurisdiction and asserts his privilege. If the suit affects a foreign minister it must be dismissed; not because he is a party to it, but because it affects him.” It may be asked, what is—if this is not— the proper construction of the statute? It has been answered that none are affected in criminal cases but the sovereign prosecuting and the defendants; and that hence colored persons only can be prosecuted under its provisions. When the act was passed there was no state where ample provision did not exist for the trial and punishment of persons of color for all offenses; and no locality where there was any difficulty in enforcing the law against them. There was no complaint upon the subject. The aid of congress was not invoked in that direction. It is not denied that the first and second sections were designed solely for their benefit. The third section, giving the jurisdiction to which this question relates, provides expressly that if sued or prosecuted in a state court under the circumstances mentioned, they may at once have the cause certified into a proper federal court. The fourth section requires district-attorneys, marshals and their deputies, commissioners, agents of the freedmen’s bureau, and other officers specially empowered by the president, to institute proceedings at the expense of the United States, against all persons violating the provisions of the act; and “with a view to affording reasonable protection to all persons in their constitutional rights of equality before the law, without distinction of race or color,' or previous condition of slavery or involuntary servitude,” it is made the duty of circuit courts of the United States to increase the number of their commissioners. The fifth section imposes a heavy fine on marshals who shall refuse to receive or neglect to execute any process issued under the act; and it authorizes commissioners to appoint persons to serve such process issued by them. The sixth section renders liable to fine and imprisonment any person who shall obstruct an officer or other person in the execution of such process; or who shall aid a person arrested to escape; or conceal a person for whose arrest a warrant has been issued. Section eight authorizes the president to direct the judge, marshal, and district-attorney to attend at such place and for such time as he may designate, “for the purpose of the more speedy arrest and trial of persons charged with violations of this act.” The ninth section authorizes the president to employ such part of the land and naval forces of the United States, and of the militia, as shall be necessary to “prevent the violation and enforce the due execution of this act.” It is incredible that all this machinery, including the agency of the freedmen’s bureau, would have been provided, if the intention were to limit the criminal jurisdiction conferred by the third section to colored persons, and exclude all white persons from its operation. The title of the act is in harmony with this view of the subject. The construction contended for would obviously defeat the main object which congress had in view in passing the act, and produce results the opposite of those intended. The difficulty was that where a white man was sued by a colored man, or was prosecuted for a crime against a colored man, colored witnesses were excluded. This in many cases involved a denial of justice.' Crimes of the deepest dye were committed by white men with impunity. Courts and juries were frequently hostile to the colored man, and administered justice, both civil and criminal, in a corresponding spirit. Congress met these evils by giving to the colored man everywhere the same right to testify “as is enjoyed by white citizens,” abolishing the distinction between white and colored witnesses, and by giving to the courts of the United States jurisdiction of all causes, civil and criminal, which concern him, wherever the right to testify as if he were white is denied to him or cannot be enforced in the local tribunals of the state. The context and the rules of interpretation to be applied permit of no other construction. Such was clearly the-intention of congress, and that intention constitutes the law. This, with the provision which authorizes colored defendants in the state courts to have their causes certified into the federal courts, and the other provisions referred to, renders the protection which congress has given as effectual as it can well be made by legislation. It is one system, all the parts looking to the same end. Where crime is committed with impunity by any class of persons, society, so far as they are concerned, is reduced to that condition of barbarism which compels those unprotected by other sanctions to rely upon physical force for the vindication of their natural rights. There is no other remedy, and no other security. It is said there can be no such thing as a right to testify, and that if congress conferred it by this act, a cloud of colored witnesses may appear in every case and claim to exercise it. There is no force in this argument. The statute is to be construed reasonably. Like the right to sue and to contract, it is to be exercised only on proper occasions and within proper limits. Every right given is to be the same “as is enjoyed by white citizens." It is urged that this is a penal statute, and to be construed strictly. We regard it as remedial in its character, and to be construed liberally, to carry out the wise and beneficent purposes of congress in enacting ii, Bae. Abr. tit. “Statute,” 1. But if the act were a penal statute, the canons of interpretation to be applied would not affect the conclusion at which we have arrived. U. S. v. Wiltberger, 5 Wheat. [18 U. S.] 96; Com. v. Loring, 8 Pick. 374; U. S. v. Morris, 14 Pet. [39 U. S.] 475; U. S. v. Winn [Case No. 16,740]; 1 Bish. Cr. Law, 236. This objection to the indictment cannot avail the defendants. III. Is the act warranted by the constitution? The first eleven amendments of the constitution were intended to limit the powers of the government which it created, and to protect the people of the states. Though earnestly sustained by the friends of the constitution, they originated in the hostile feelings. with which it was regarded by a large portion of the people, and were shaped by the jealous policy which those feelings inspired. The enemies of the constitution saw many perils of evil in the center, but none elsewhere. They feared tyranny in the head, not anarchy in the members, and they took their measures accordingly. The friends of the constitution desired to obviate all just grounds of apprehension, and to give repose to the public mind. It was important to unite, as far as possible, the entire people in support of the new system which had been adopted. They felt the necessity' of doing all in their power to remove every obstacle in the way of its success. The most momentous consequences for good or evil to the country were to follow the results of the experiment. Hence the spirit of concession which animated the convention, and hence the adoption of these amendments after the work of the convention was done and had been approved bv the people. The twelfth amendment grew out of the contest between Jefferson and Burr for the presidency. The thirteenth amendment is the last one made. It trenches directly upon the power of the states and of the people of the states. It is the first and only instance of a change of this character in the organic law. It destroyed the most important relation between capital and labor in all the states where slavery existed. It affected deeply the fortunes of a large portion of their people. It struck out of existence millions of property. The measure was the consequence of a strife of opinions, and a conflict of interests, real or imaginary, as old as the constitution itself. These elements of discord grew in intensity. Their violence was increased by the throes and convulsions of a civil war. The impetuous vortex finally swallowed up the evil, and with it forever the power to restore it. Those who insisted upon the adoption of this amendment were animated by no spirit of vengeance. They sought security against the recurrence of a sectional conflict. They felt that much was due to the African race for the part it had borne during the war. They were also impelled by a sense of right and by a strong sense of justice to an unoffending and long-suffering people. These considerations must not be lost sight of when we come to examine the amendment in order to ascertain its proper construction. The act of congress confers citizenship. Who are citizens, and what are their rights? The constitution uses the words “citizen” and “natural born citizens;” but neither that instrument nor any act of congress has attempted to define their meaning. British jurisprudence, whence so much of our own is drawn, throws little light upon the subject. In Johnson’s Dictionary, “citizen” is thus defined: “(1) A freeman of a city; not a foreigner; not a slave; (2) a townsman, a man of trade; not a gentleman; (3) an inhabitant; a dweller in any place.” The definitions given by other English lexicographers are substantially the same. In Jacob’s Law Dictionary (Ed. 1783), the only definition given is as follows: “Citizens (cives) of London are either freemen or such as reside and keep a family in the city, etc.; and some are citizens and freemen, and some are not, who have not so great privileges as others. The citizens of London may prescribe against a statute, because their liberties are reinforced by statute.” 1 Bolle, 105. Blackstone and Tomlin contain nothing upon the subject. “The word ‘civis,’ taken in the strictest sense, extends only to him that is entitled to the privileges of a city of which he is a member, and in that sense there is a distinction between a citizen and an inhabitant within the same city, for every inhabitant there is not a citizen.” Scot v. Schwartz, Comyn, 677. “A citizen is a freeman who has kept a family in a city.” Roy v. Hanger, 1 Rolle, 138,149. “The term ‘citizen,’ as understood in our law, is precisely analogous to the term subject, in the common law; and the change of phrases has entirely resulted from the change of government. The sovereignty has been changed from one man to the collective body of the people, and he who before was a subject of the king is now a citizen of the state.” State v. Manuel. 4 Dev. & B. 26. In Shanks v. Dupont, 3 Pet. [28 U. S.] 247, the supreme court of the United States said: “During the war each party claimed the allegiance of the natives of the colonies as due exclusively to itself. The Americans insisted upon the allegiance of all born within the states, respectively; and Great Britain asserted an equally exclusive claim. The treaty of 1783 acted upon the state of things as it existed at that period. It took the actual state of things as its basis. All those, whether natives or otherwise, who then adhered to the American states, were virtually absolved from their allegiance to the British crown, and those who then adhered to the British crown, were deemed and held subjects of that crown. The treaty of peace was a treaty operating between the states on each side, and the inhabitants thereof; in the language of the seventh article, it was a ‘firm and perpetual peace between his Britannic majesty and the said states, and between the subjects of one and the citizens of the other.’ Who then were subjects or citizens was to be decided by the state of facts. If they were originally subjects of Great Britain and then adhered to her and were claimed by her as subjects, the treaty deemed them such; if they were originally British subjects, but then adhering to the states, the treaty deemed them citizens.” All persons born in the allegiance of the king are natural born subjects, and all persons bom in the allegiance of the United States are natural born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. There are two exceptions, and only two, to the universality of its application. The children of ambassadors are in theory born in the allegiance of the powers the ambassadors represent, and slaves, in legal contemplation, are property, and not persons. 2 Kent, Comm. 1; Calvin’s Case, 7 Coke. 1; 1 Bl. Comm. 366; Lynch v. Clarke, 1 Sand. Ch. 583. The common law has made no distinction on account of race or color. None is now made in England, nor in any other Christian country of Europe. The fourth of the Articles of Confederation declared that the “free inhabitants of each of these states, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all the privileges and immunities of free citizens in the United States,” &c. On the 25th of June, 1778, when these articles were under consideration by the congress, South Carolina moved to amend this fourth article by inserting after the word “free” and before the word “inhabitants,” the word “white.” -Two states voted for the amendment and eight against it. The vote of one was divided. Scott v. Sanford. 19 How. [60 U. S.] 575. When the constitution was adopted, free men of color were clothed with the franchise of voting in at least five states, and were a part of the people whose sanction breathed into it the breath of life. Scott v. Sanford, Id. 573; State v. Manuel, 2 Dev. & B. 24, 25. “ ‘Citizens’ under our constitution and laws means free inhabitants born within the United States or naturalized under the laws of congress.” 1 Kent, Comm. 292, note. We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution. It is further said in the note in 1 Kent, Comm., before referred to: “If a slave bom in the United States be manumitted or otherwise lawfully discharged from bondage, or if a black man born in the United States becomes free, he becomes thenceforward a citizen, but under such disabilities -as the laws of the several states may deem it expedient to prescribe to persons of color.” In the case of State v. Manuel, supra, it was remarked: “It has been said that by the constitution of the United States, the power of naturalization has been conferred exclusively upon congress, and therefore it cannot be competent for any state by its municipal regulations to make a citizen. But what is naturalization? It is the removal of the disabilities of alienage. Emancipation is the removal of the incapacity of slavery. The latter depends wholly upon the internal regulations of the state. The former belongs to the government of the United States. It would be dangerous to confound them.” Id. p. 25. This was a decision of the supreme court of North Carolina, made in the year 1836. The opinion was delivered by Judge Gaston. He was one of the most able and learned judges this country has produced. The same court, in 1848, Chief Justice Ruffin delivering the opinion, referred to the case of State v. Manuel, and said: “That case underwent a very laborious investigation by both the bench and the bar. The case was brought here by appeal, and was felt to be one o'f very great importance in principle. It was considered with an anxiety and care worthy of the principle involved, and which give it a controlling influence upon all questions of similar nature.” State v. Newsom, 5 Ired. 253. We cannot deny the assent of our judgment to the soundness of the proposition that the emancipation of, a native bom slave by removing the disability of slavery made him a citizen. If these views ue correct, the provision in the act of congress conferring citizenship was unnecessary, and is inoperative. Granting this to be so, it was well, if congress had the power, to insert it, in order to prevent doubts and differences of opinion which might otherwise have existed upon the subject. We are aware that a majority of the court, in the case of Scott v. Sanford, arrived at conclusions different from those we have expressed. But in our judgment these points were not before them. They decided that the whole case, including the agreed facts, was open to their examination, and that Scott was a slave. This central and controlling fact excluded all other questions, and what was said upon them by those of the majority, with whatever learning and ability the argument was conducted, is no more binding upon this court as authority than the views of the minority upon the same subjects. Carroll v. Carroll, 16 How. [57 U. S.] 287. The fact that one is a subject or citizen determines nothing as to his rights as such. They vary in different localities and according to circumstances. Citizenship has no necessary connection with the franchise of voting, eligibility to office, or indeed with any other rights, civil or political. Women, minors, and persons non compos are citizens, and not the less so on account of their disabilities. In England, not to advert to the various local regulations, the new reform bill gives the right of voting for members of parliament to about eight hundred thousand persons from whom it was before withheld. There, the subject is wholly within the control of parliament. Here, until the thirteenth amendment was adopted, the power belonged entirely to the states, and they exercised it without question from any quarter, as absolutely as if they were not members of the Union. The first ten amendments to the constitution, which are in the nature of a bill of rights, apply only to the national government. They were not'intended to restrict the power of the states. Barrows v. Mayor, etc., 7 Pet. [32 U. S.] 247; Withers v. Buckley, 20 How. [61 U. S.] 84; Murphy v. People. 2 Cow. 818. Our attention has been called to several treaties by which Indians were made citizens; to those by which Louisiana, Florida, and California were acquired, and to the act passed in relation to Texas. All this was done under the war and treaty making powers of the constitution, and those which authorize the national government to regulate-the territory and other property of the United States, and to admit new states into the Union. American Ins. Co. v. Canter, 1 Pet. [26 U. S.] 511; Cross v. Harrison, 16 How. [57 U. S.] 164; 2 Story, Const. 158. These powers are not involved in the question before us. and it is not necessary particularly to consider them. A few remarks, however, in this connection will not be out of place. A treaty is declared by the constitution to be the “law of the land.” What is unwarranted or forbidden by the constitution can no more be done in one way than in another. The authority of the national government is limited, though supreme in the sphere of its operation. As compared with the state governments, the subjects upon which it operates are few in number. Its objects are all national. It is one wholly of delegated powers. The states possess all which they have not surrendered; the government of the Union only such as the constitution has given to it, expressly or incidentally, and by reasonable intendment. Whenever an act of that government is challenged a grant of power must be shown, or the act is void. “The power to make colored persons citizens has been actually exercised in repeated and important instances. See the treaty with the Ohoctaws of September 27, 1S30, art. 14; with the Oherokees of May 20, 1836. art. 12; and the treaty of Guadeloupe Hidalgo, of February 2, 1848, art. 8. ” Scott v. Sanford, 19 How. [60 U. S.] 486, opinion of Curtis, J. See, also, the treaty with France of April 30, 1803, by which Louisiana was acquired (article 3); and the treaty with Spain of the 23rd of February, 1819, by which Florida was acquired (article 3). The article referred to in the treaty with France and in the treaty with Spain is in the same language. In both the phrase “inhabitants” is used. No discrimination is made against those, in whole or in part, of the African race. So in the treaty of Guadeloupe Hidalgo (articles 8 and 9), no reference is made to color. Our attention has been called to three provisions of the constitution, besides the thirteenth amendment, each of which will be briefly adverted to. 1. Congress has power “to establish an uniform rule of naturalization.” Article 1, § 8.-After considerable fluctuations of judicial opinion, it was finally settled by the supreme court that this power is vested exclusively in congress. Collet v. Collet, 2 Dali. [2 U. S.] 294; U. S. v. Velati, Id. 370; Golden v. Prince [Case No. 5,509]; Chirac v. Chirac, 2 Wheat. [15 U. S.] 259; Houston v. Moore. Id. 49; Federalist, No. 32. An alien naturalized is “to all intents and purposes a natural bom subject.” Co. Litt. 129. “Naturalization takes effect from birth; denization from the date of the patent.” Vin. Abr. tit. “Alien,” D. Until the passage of a late act of parliament, naturalization in England was effected by a special statute in each case. The statutes were usually alike. The form appears in Godfrey v. Dickson, Cro. Jac. 539, c. 7. Under the late act a resident alien may accomplish the object by a petition to the secretary of state for the home department. The power is applicable only to those of foreign birth. Alienage is an indispensable element in the process. To make one of domestic birth a citizen is not naturalization, and cannot be brought within the exercise of that power. There is a universal agreement of opinion upon this subject. Scott v. Sanford, 19 How. [60 U. S.] 578; 2 Story. Const. 44. In the exercise of this power congress has confined the law to white persons. No one doubts tbeir authority to extend it to all aliens, without regard to race or color. But they were not bound to do so. As in other cases, it was for them to determine the extent and the manner in which the power given should be exercised. They could not exceed it, but they were not bound to exhaust it. It was well remarked by one of the dissenting judges, in Scott v. Sanford, 10 How. [60 U. S.] 5SG, in regard to the African race: “The constitution has not excluded them, and since that has conferred on congress the power to naturalize colored aliens, it certainly shows color is not a necessary qualification for citizenship under the constitution of the United States.” It may be added that before the adoption of the constitution, the states possessed the power of making both those of foreign and domestic birth citizens, according to their discretion. This power, as to the former, they surrendered. They did not as to the latter, and they still possess it. “The powers not delegated to the United States by this constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people.” Const. Amend. What the several states under the original constitution only could have done, the nation has done by the thirteenth amendment. An occasion for the exercise of this power by the states may not, perhaps cannot, hereafter arise. 2. “The citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states.” Const, art. 14, § 2. This provision of the constitution applies only to citizens going from one state to another. “It is obvious that if the citizens of each state were to be deemed aliens to each other, they could not take or hold real estate, or other privileges, except as other aliens.” “The intention of this clause was to confer on them, as one may say, a general citizenship, and to communicate all the privileges and immunities which the citizens of the same state would be entitled to under the same circumstances.” 2 Story, Const. § 1ST. Chancellor Kent says: “If citizens remove from one state to another, they are entitled to the privileges that persons of the same description are entitled to in the states to which the removal is made, and to none other.” 2 Kent, Comm. 36. This provision does not bear particularly upon the question before us, and need not be further considered. 3. “The United States shall guarantee to every state in this Union a republican form of government, and shall protect each of them against invasion, and on application of the legislature or of the executive (when the legislature cannot be convened), against domestic violence.” Article 4, § 4. Mr. Justice Story, adopting the language of the Federalist, says: “That but for this power a successful faction might erect a tyranny on the ruins of order and law, while no succor could be constitutionally afforded by the Union to the friends and supporters of the government.” . . . “But a right implies a remedy, and where else could the remedy be deposited than where it is deposited by the constitution?” 2 Story, Const. 530, 560. This topic is foreign to the subject before us. We shall not pursue it further. Congress, in passing the act under consideration, did not proceed upon this ground. It is not the theory or purpose of that act to apply the appropriate remedy for such a state of things. The constitutionality of the act cannot be sustained under this section. This brings us to the examination of the thirteenth amendment. It is as follows: “Article 18, § 1. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction. “See. 2. Congress shall have power to enforce this article by appropriate legislation.” Before the adoption of this amendment, the constitution, at the close of the enumeration of the powers of congress, authorized that body “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or any department or officer thereof.” In McCullough v. Maryland, 4 Wheat. [17 U. S.] 421-423, Chief Justice Marshall used the phrase “appropriate” as the equivalent and exponent of “necessary and proper” in the preceding paragraph. He said: “Let the end be legitimate, let it be within the scope of the constitution, and all the means which are appropriate, which are plainly adapted to the end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional.” .... “To use ODe” (a bank) “must be within the discretion of congress, if it be an appropriate mode of executing the powers of government.” .... “But were its necessity less apparent” (the Bank of the United States), “none can deny its being an appropriate measure; and if it is, the degree of its necessity, as has been justly observed, is to be discussed in another place.” Pursuing the subject, he added: “When the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power.” Judge Story says: “In the practical application of government, then, the public functionaries must be left at liberty to exercise the powers with which the people, by the constitution and laws, have entrusted them. They must have a wide discretion as to the choice of means; and the only limitation upon the discretion would seem to be that the means are appropriate to the end; and this must admit of considerable latitude, for the relation between the action and the end, as has been justly remarked, is not always so direct and palpable as to strike the eye of every observer. If the end be legitimate, and within the scope of the constitution, all the means which are appropriate, and which are plainly adapted to that end, and which are not prohibited, may be constitutionally employed to carry it into effect.” 1 Story, Const. § 432. These passages show the spirit in which the amendment is to be interpreted, and develop fully the principles to be applied. Before proceeding further, it would be well to pause and direct our attention to what has been deemed appropriate in the execution of some of the other powers confided to congress in like general terms. (1) “The power to lay and collect taxes, duties, and imposts.” This includes authority to build custom houses; to employ revenue cutters; to appoint the necessary collectors and other officers; to take bonds for the performance of their duties; to establish the needful bureaus; to prescribe when, how, and in what the taxes and duties shall be paid; to rent or build warehouses for temporary storing purposes; to define all crimes relating to the subject in its various ramifications, with their punishment; and to provide for their prosecution. (2) “To regulate commerce with foreign nations, among the several states, and with the Indian tribes.” This carries with it the power to build and maintain lighthouses, piers, and breakwaters; to employ revenue cutters; to cause surveys to be made of coasts, rivers, and harbors; to appoint all necessary officers, at home and abroad; to prescribe their duties, fix their terms of office and compensation; and to define and punish all crimes relating to commerce within the sphere of the constitution. U. S. v. Coombs, 12 Pet [37 U. S.] 72; ü. S. v. Holliday, 3 Wall. [70 U. S.] 407. (3) “To establish post-offices and post-roads.” This gives authority to appoint a postmaster-general, and local postmasters throughout the country; to define their duties and compensation; to cause the mails to be carried by contract, or by the servants of the department, to all parts of the states and territories of the Union, and to foreign countries, and to punish crimes relating to the service, including obstructions to those engaged in transporting the mail while in the performance of their duty. The mail penal code comprises more than fifty offenses. All of them rest for their necessaiy constitutional sanction upon this power, thus briefly expressed. (4) “To raise and support armies.” This includes the power to enlist such number of men for such periods and at such rates of compensation as may be deemed proper; to provide all the necessary officers, equipments, and supplies, and to establish a military academy, where are taught military and such other sciences and branches of knowledge as may be deemed expedient, in order to prepare voung men for the military service (5)“To provide and maintain a navy.” This authorizes the government to buy or build any number of steam or other ships of war, to man, arm, and otherwise prepare them for war, and to dispatch them to any accessible part of the globe. Under this power the naval academy has been established. U. S. v. Beavan, 3 Wheat [16 U. S.] 390. These are but a small part of the powers which are incidental and appropriate to the main powers expressly granted. It is Utopian to believe that without such constructive powers, the powers expressed can be so executed as to meet the intentions of the framers of the constitution, and to accomplish the objects for which governments are instituted. The constitution provides expressly for the exercise of such powers to the full extent that may be “necessary and proper.” No other limitation is imposed. Without this provision, the same result would have followed. The means of execution are inherently and inseparably a part of the power to be executed. The constitution declares that “the senators and representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath to support this constitution.” No other oath is required, “yet he would be charged with insanity who would contend that the legislature might not superadd to the oath directed by the constitution such other oath of office as its wisdom might suggest.” McCulloch v. Maryland, 4 Wheat. [17 U. S.j 416. The Bank of the United States, with all its faculties, was sustained because it was “convenient” and “appropriate” for the government in the management of its fiscal affairs. McCulloch v. Maryland, 4 Wheat. [17 U. S.] 316. Perhaps no measures of the national government have involved more doubt of their constitutionality than the acquisition of Louisiana and the embargo. Both were carried through congress by those who had been most strenuous for a strict construction of the constitution. Mr. Jefferson thought the former ultra vires, and advised an amendment of the constitution, but expressed a willingness to acquiesce if his friends should entertain a different opinion. 2 Story, Const. 160. The Second Bank of the United States was a measure of the same class of thinkers. The acquisition of Florida involved the same question of constitutional power as the ac quisition of Louisiana. It was universally acquiesced in; and the constitutional question was not raised. It is an axiom in our jurisprudence, that an act of congress is not to be pronounced unconstitutional unless the defect of power to pass it is so clear as to admit of no doubt. Every doubt is to be resolved in favor of the . validity of the law. “The opposition between the constitution and the law should be such, that the judge feels a clear and strong conviction of their incompatibility with each other.” Fletcher v. Peck, 6 Cranch [10 U. S.] 128. “The presumption, indeed, must always be in favor of the validity of laws, if the contrary is not clearly demonstrated.” Cooper v. Telfair, 4 Dall. [4 U. S.] 18. “A remedial power in the constitution is to be construed liberally.” Chisholm v. Georgia, 2 Dall. [2 Ü. S.] 476. “Perhaps the safest rule of interpretation, after all, will be found to be to look to the nature and objects of the particular powers, duties, and rights, with all lights and aids of contemporary history, and to give to the words of each just such operation and force, consistent with their legitimate meaning, as may fairly secure and attain the ends proposed.” Prigg v. Com., 16 Pet. [41 U. S.] 60. Since the organization of the supreme court, but three acts of congress have been pronounced by that body void for unconstitutionality. Marbury v. Madison, 1 Cranch [5 U. S.] 137; Scott v. Sanford, 19 How. [60 U. S.] 393; Ex parte Garland, 4 Wall. [71 U. S.] 334. The present effect of the amendment was to abolish slavery wherever it existed within the jurisdiction of the United States. In the future it throws its protection over every one, of every race, color, and condition within that jurisdiction, and guards them against the recurrence of the evil. The constitution, thus amended, consecrates the entire territory of the republic to freedom, as well as to free institutions. The amendment will continue to perform its function throughout the expanding domain of the nation, without limit of time or space. Present possessions and future acquisitions will be alike within the sphere of its operation. Without any other provision than the first section of the amendment, congress would have had authority to give full effect to the abolition of slavery thereby decreed. It would have been competent to put in requisition the executive and judicial, as well as the legislative power, with all the energy needful for that purpose. The second section of the amendment was added out of abundant caution. It authorizes congress to select, from time to time, the means that might be deemed appropriate to the end. It employs a phrase which had been enlightened by well-considered judicial application. Any exercise of legislative power within its limits involves a legislative, and not a judicial question. It is only when the authority given has been clearly exceeded, that the judicial power can be invoked. Its office, then, is to repress and annul the excess; beyond that it is powerless. We will now proceed to consider the state of things which existed before and at the time the amendment was adopted, the mis-chiefs complained of or apprehended, and the remedy intended to be provided for existing and anticipated evils. When the late Civil War broke out, slavery of the African race subsisted in fifteen states of the Union. The legal code relating to persons in that condition was everywhere harsh and severe. An eminent writer said: “They cannot take property by descent or purchase; and all they find and all they own belongs to their master. They cannot make contracts, and they are deprived of civil rights. They are assets for the payment of debts, and cannot be emancipated by will or otherwise to the prejudice of creditors.” 2 Kent, Comm. 281, 282. In a note, it is added: “In Georgia, by an act of 1829, no person is permitted to teach a slave, a negro, or a free person of color to read or write. So in Virginia, by a statute of 1830, meetings of free negroes to learn reading or writing are unlawful, and subject them to corporal punishment; and it is unlawful for white persons to assemble with free negroes or slaves to teach them to read or write. The prohibitory act of the legislature of Alabama, passed at the session of 1831-2, relative to the instruction to be given to the slaves or free colored population, or exhortation, or preaching to them, or any mischievous influence attempted to be exerted over them, is sufficiently penal. Laws of similar import are presumed to exist in the other slaveholding states, but in Louisiana the law on the subject is armed with ten-fold severity. It not only forbids any person teaching slaves to read-or write, but it declares that any person using language in any public discourse from the bar, bench, stage, or pulpit, or any other place, or in any private conversation, or making use of any sign or actions having a tendency to produce discontent among the free colored population or insubordination among the slaves, or who shall be knowingly instrumental in bringing into the state any paper, book, or pamphlet having a like tendency, shall, on conviction, be punishable with imprisonment or death, at the discretion of the court.” Slaves were imperfectly, if at all, protected from the grossest, outrages by the whites. Justice was not for them. The charities and rights of the domestic relations had no legal existence among them. The shadow of the evil fell upon the free blacks. They had but few civil and no political rights in the slave states. Many of the badges of the bondman’s degradation were fastened upon them. Their condition, like his, though not so bad, was helpless and hopeless. This is borne out by the passages we have given from Kent’s Commentaries. Further research would darken the picture. The states had always claimed and exercised the exclusive right to fix the status of all persons living within their jurisdiction. On January 1, 1S63, President Lincoln issued his proclamation of emancipation. Missouri and Maryland abolished slavery by their own voluntary action. Throughout the war the African race had evinced entire sympathy with the Union cause. At the close of the Rebellion two hundred thousand had become soldiers in the Union armies. The race had strong claims upon the justice and generosity of the nation. Weighty considerations of policy, humanity, and right were superadded. Slavery, in fact, still subsisted in thirteen states. Its simple abolition, leaving these laws and this exclusive power of the states over the emancipated in force, would have been a phantom of delusion. The hostility of the dominant class would have been animated with new ardor. Legislative oppression would have been increased in severity. Under the guise of police and other regulations slavery would have been in effect restored, perhaps in a worse form, and the gift of freedom would have been a curse instead of a blessing to those intended to be benefited. They would have had no longer the protection which the instinct of property leads its possessor to give in whatever form the property may exist. It was to guard against such evils that the second section of the amendment was framed. It was intended to give expressly 1o congress the requisite authority, and to leave no room for doubt or cavil upon the subject. The results have shown the wisdom of this forecast. Almost simultaneously with the adoption of the amendment this course of legislative oppression was begun. Hence, doubtless, the passage of the act under consideration. In the presence of these facts, who will say it is not an “appropriate” means of carrying out the object of the first section of the amendment, and a necessary and proper execution of the power conferred by the second? Blot out this act and deny the constitutional power to pass it, and the worst effects of slavery might speedily follow. It would be a virtual abrogation of the amendment. It would be a remarkable anomaly if the national government, without this amendment, could confer citizenship on aliens of every race or color, and citizenship, with civil and political rights, on the “inhabitants” of Louisiana and Florida, without reference to race or color, and can not, with the help of the amendment, confer on those of the African race, who have been born and always lived within the United States, all that this law seeks to give them. It was passed by the congress succeeding the one which proposed the amendment. Many of the members of both houses were the same. This fact is not without weight and significance. McCulloch v. Maryland, 4 Wheat. [17 U. S.] 401. The amendment reversed and annulled the original policy of the constitution, which left it to each state to decide exclusively for itself whether slavery should or should not exist as a local institution, and what disabilities should attach to those of the servile race within its limits. The whites needed no relief or protection, and they are practically unaffected by the amendment. The emancipation which it wrought was an act of great national grace, and was doubtless intended to reach further in its effects as to every one within its scope, than the consequences of a manumission by a private individual. We entertain no doubt of the constitutionality of the act in all its provisions. It gives only certain civil rights. Whether it was competent for congress to confer political rights also, involves a different inquiry. We have not found it necessary to consider the subject. We are not unmindful of the opinion of the court of appeals of Kentucky, in the case of Brown v. Com. [4 Metc. (Ky.) 221]. With all our respect for the eminent tribunal from which it proceeded, we have found ourselves unable to concur in its conclusions. The constitutionality of the act is sustained by the supreme court of Indiana, and the chief justice of the court of appeals of Maryland, in able and well-considered opinions. Smith v. Moody, 20 Ind. 299; In re A. H. Somers. We are happy to know that if we have erred the supreme court of the United States can revise our judgment and correct our error. The motion is overruled, and judgment will be entered upon the verdict. Motion overruled.

CHOATE, District Judge. In this case, which is a suit by information against 117 boxes of tobacco, the forfeiture of the goods is sought for on the grounds that the stamps on the boxes were old stamps used a second time, and also that the stamps were not can-celled by the government die. The tobacco was manufactured in North Carolina, and consigned for sale to a commission merchant in New York, where it was seized. The jury have found a verdict for the defendant. The trial occupied three days. No exceptions were taken on the trial and the jury were out several hours. The plaintiff now moves for a new trial, on the ground that the verdict is against the weight of evidence. The evidence relied on by the government was the appearance of the stamps themselves, and the opinions of experts, upon which it is claimed to have been demonstrated that the stamps were old stamps and also that they were not and could not have been cancelled by the government die. On the part of the defence the claimant who manufactured and shipped the tobacco was called as a witness, aDd he swore positively that all the stamps used by him were new stamps, and that they were all cancelled by the government die. The deposition of his foreman was read to the same . effect. As to the evidence on the question whether the stamps were old stamps or not, it is clear that it cannot be claimed that the proofs of the government were so overwhelming that they proved the point beyond all doubt. The testimony of the claimant, as to the mode in which they were attached, and as to their being occasionally tom and re-pasted and re-varnished, and the evidence as to the usage the boxes had received, wa$ such as to make it clearly improper, against the positive testimony of the claimant and his foreman, to disturb the verdict, however confident was-the opinion of the experts on this question, and however suspicious the appearance of the stamps themselves. On the other question, there is more ground, for the motion. The testimony of the manufacturer of the government dies, and other testimony, as well as the inspection of the cancellations themselves, on two or three of the boxes, leave no doubt in my mind that the cancellations on these boxes were made by some other instrument than a government die. On the claimant’s part, it is proved that during a part of the time, during which the tobacco was shipped, and, so far as anything positively appears to the contrary, during the time these two or three boxes were shipped, he had a government die which was injured, and which he afterwards,sur-rendered to the internal revenue officers. This die, though in the possession of the government officers in North Carolina, was not produced on the trial, although the United States district attorney for North Carolina attended the taking of. depositions in that state, and the fact of the imperfection in that die was then testified to by the witnesses examined. One of the points made by the claimant’s counsel upon the trial, was that the injury to that die “would account for the alleged irregularities in the appearance of these cancellations. I am not able to say that from any evidence in the case these -irregularities could have been so caused. Indeed, they are of a character quite distinct from any effect which the injury shown to have been sustained by that die would have produced. Upon the whole testimony, I think the verdict on this point, as to the two or three boxes referred to, is so decidedly against the weight of the evidence that, were this an ordinary case between parties to a controversy for the recovery of money or property, it would be the duty of the court to grant a rew trial, that the question might be submitted to another jury. But the case is of such a character that it would not be proper, nor in accordance with the decisions of the courts, to disturb the verdict. The proof above referred to extended to but two or three out of one hundred and seventeen boxes. It is true that the testimony of the government’s witnesses was to the general effect that all the stamps showed more or less of the same suspicious appearances that were observed and pointed out on the seven or eight boxes exhibited to the jury, in respect to the re-use or unlawful cancellation of the stamps; and it is true that as the tobacco was all held in the same store for sale, on account of the claimant, it was sufficient to prove the charge against one box to ensure the forfeiture of the whole. But nevertheless, the forfeiture of goods not proved to have been unlawfully stamped or unlawfully cancelled, because, found with other guilty goods, is a proceeding highly penal in its character, -though doubtless justified by good reasons of public policy. Even if the proof were • equally strong against all the boxes, the decided weight of authority is that the court should not grant a new trial in an action for a forfeiture, where the verdict is for the defendant Within the meaning of the rules relating to new trials, I think an action of this character is clearly a penal action. And no precedent is cited which justifies the granting of this motion. On the contrary, it has been often held that the court will not disturb a verdict for the defendant, where there has been no misdirection, in an action where the effect of the verdict is to shield the defendant from a penalty. Ranston v. Etteridge, 2 Chit 273; Rex v. Mann, 4 Maule & S. 337; Brook v. Middleton, 10 East, 268; Brooke v. Middleton, 1 Camp. 450; Comfort v. Thompson, 10 Johns. 101; Baker v. Richardson, 1 Cow. 77; Hall v. Green, 24 Eng. Law & Eq. 453. And especially where, as in this ease, the. government might have made a stronger case by the production of evidence in its possession, and the value of the goods actually inculpated is very trifling, and the cost and expense incurred by the claimant in defence of the action Has been large, and he can in no event recover his costs,- the impropriety of disturbing the verdict is obvious. A motion is also made on the part of the plaintiff, for a certificate of probable cause. This is opposed on the part of the claimant. But I think it clear that the appearance of the stamps on these boxes was such as to justify the seizure, as one based on probable cause for forfeiture. Motion for new trial denied. Motion for certificate of probable cause granted.

FIELD, District Judge (charging jury). This is an indictment for executing and signing a false and fraudulent bond, attempted to be used in fraud of the internal revenue laws. The case is important from the fact of its being the first indictment for this offence that has ever been tried, at least in this district. The whole country is ringing with reports of enormous frauds committed against the revenue laws. They have reached a magnitude perfectly appalling, and unless checked, they threaten to sap the foundations of public credit, to rob the government of its means of support, to bring the law into contempt, and load with reproach our national character. A prolific source of these frauds, the machinery by means of which many of them are effected, is the use of false and fraudulent bonds. Prevent the use of such bonds, and you nip these frauds in the bud. Let me explain this to you, for it is a matter that may be unfamiliar to most of you. Before a man can engage in the business of distilling whiskey or oil. he must give a bond to the United States, with good and sufficient sureties, to be approved by the collector, with a condition that he will comply with the requirements of law; that he will keep books in the form prescribed, and make true entries of his business, and make faithful returns of his production, and pay all the taxes due thereon, so that, before whiskey could be withdrawn from a bonded warehouse' for exportation, re-distillation, or transiDortation (before the recent change in the law), a bond must be given in like manner; and if these bonds be really good and sufficient, they afford protection to the government against frauds by the distiller, and stand in the place of spirits removed from bonded warehouses. Thus, you perceive, that an easy mode of committing frauds is by palming off upon the collectors false and fraudulent bonds. It is an alarming fact, that many of all such bonds given in relation to the immense trade in whiskey within the last year or two, have been found to be absolutely worthless, and the treasury has thus been defrauded of millions. But this case is also important from the character of the defense set up. If it is good in this case, it will be good in every indictment for a similar offence. It was admitted that this bond was false and fraudulent. It could not be denied. The testimony of Mr. Vanwinkle, deputy collector, and Mr. Merwin, an inspector, detailed for the special duty of examining revenue bonds, leaves no doubt on this point. Mr. Vanwinkle proves the execution of the bond, and that the sureties, Wm. L. Thomas and Joseph Gregory, were brought to him by O’Brien, and represented by him to be good; that they testified before the collector, on what is known as form 33, in which Thomas swore he lived at 1G-j Scliermerhorn street, Brooklyn, and Gregory, that he was a commission merchant at 27 South street. New York, and owned a house and lot No. 1G2 West Twenty-seventh street, on the comer of Tenth avenue; and both swore that they were worth 35,000 after all their debts were paid. Mr. Merwin testifies that he went to 165 Scher-merhorn street, and found indeed, a Mr. Thomas living there, but not Wm. L. Thomas; it was Wm. M. Thomas, a man of respectability and property, who is also called as a witness, and swears that he never saw or heard of the bond. Mr. Merwin also swears, that he ascertained that Gregory had no place of business, and no business at all but what little he picked up about the wharves, and that there was no such house as 162 West Twenty-Seventh street, near the corner of Tenth avenue, or owned by Gregory. Having shown the execution of the bond by the defendants, their representations that the sureties were good, and the false and fraudulent character of the bond, the government rested. Now, upon this evidence, the defendant’s counsel might have gone before the jury, and with some plausibility have contended that the defendants did not know that the bond was false; that they might themselves have been deceived; that there was nothing to show fraud or guilty knowledge, and that the most that could have been charged was culpable carelessness. But they did not take this course; they asked the court, indeed, to arrest the further progress of the case, and say to the jury that there was no evidence of fraud. This the court could not do. And then they opened their defence, and called one witness to prove it. And it is the nature of that defence, as 1 said, that gives the case its chief importance. It seems to me an extraordinary defence. Am I mistaken in my view of it, or is it true, that this tide of demoralization has risen so high and spread so widely, that it has swept away all our old-fashioned notions of honesty, blunted our perceptions of truth, and confounded all our distinctions between right and wrong? What is this defence, and what is the testimony by which it is sustained? The character of the defence is revealed by the evidence of their only witness, Edmund Kim-ball. He lives in Brooklyn, and calls himself a commission merchant. He was employed by an oil inspector named Elisha W. Hinman, on behalf of the defendants, to get sureties on an oil bond. Not, so far as appears, upon any particular bond, but upon an oil bond generally. Not one word said as to the party for whom the surety was to be given—no explanations as to amount, or place, or business, or the means of the principal. He was simply to get sureties on an oil bond. He was to get $90, and pay the sureties out of this fund. He did get two sureties, Fernald and Van Ness, not for this bond, but the first bond given the week before. He paid them $20 each. They were rejected. I will say nothing now about this bond; I .wish, for the present, to keep out of view the testimony of Fernald. But the first bond was rejected, and he had to get new sureties. He told Van Ness he must pi’ocure them. Van Ness did so. Kimball knew nothing about them. He met them for the first time when he took, them to Jersey City. He there introduced them to the defendants as their sureties. They took the required oaths, which, as has been seen, were false in every particular. The bond was taken by the collector and sent to the revenue board. This is the only evidence offered by the defendants, and this, their counsel say, is a good defence. It is shown that the defendants knew nothing of these men, and had never seen them before. It did not seem to enter into the minds of the defendants’ counsel that there was any impropriety in this course of procedure. They insist, and with sincerity I have no doubt that this was a perfectly fair business transaction, that all business is now done by brokers, that a man may sell his credit as he may sell any other commodity, and they ask what harm is there in doing this kind of business through a broker. Gentlemen, did these men sell their credit, and had they any credit to sell? Did they sell credit worth $5.000 to a stranger for $20? Ought not the defendants to have known that they had no credit? The offering of such testimony shows the extent to which, the public mind has become debauched on the subject of frauds on the revenue. This is a kind of brokerage which does not seem to have been recognized by the framers of the United States revenue laws. They have taxed every calling they could imagine, and brokers of all kinds and classes but surety brokers seem to have escaped. I know that there are men who haunt the purlieus of the criminal courts, and are paid for getting bail for persons charged with crime, but it is the first time I ever heard such employment called a fair business transaction. If this defence is good, all a man has to do is to prove he knew nothing of his sureties, but hired a man to get them, and that they swore to all that was required. It will be a good de-fence to every indictment under this law, A man need only fold his arms and shut his eyes, and hire two vagabonds to swear that they are worth the amount named in his bond. It cannot be that this is a good defence. A man who resorts to these practices is bound to know the sureties are good. He takes the very steps to get bad ones. I do not say a man may not pay another to become his surety, but it must be under circumstances showing an honest effort to procure a good one. These defendants took the very course that made it certain that their bond would be false and fraudulent. I have said nothing as to Fernald’s testimony. If the defendants ought not to be convicted without it, you might very properly disregard it. He was one of the sureties on the first bond. He says that he came over with Van Ness at Kimball’s request, and went with the defendants to the collector’s office to sign the bond. That he asked if he ought not to give his residence in New Jersey, and that one of the defendants told him it would be better to do so, and asked him if he had it ready. That he inquired if the collector was fixed, and was told that he was a friend of the defendant O’Brien, and was all right; that he and Van Ness swore to false residences, and that they owned property which had no existence. All this, so far as you may give it credit, tends to show more clearly the intent of the defendants, and that they did not mean to give a good bond so long as a false one would answer. Fernald is loaded with vituperative eloquence by counsel, but it must be remembered that he is the man whom these defendants offered as their surety, a good and sufficient freeholder residing in Hoboken. You must judge which is the worse, the poor wretch who is picked up in the streets of New York, perhaps suffering for bread for his family, and tempted by a surety-broker to sell his worthless credit for $20, or the business man who hires him for twenty dollars to do it, and stands beside him when he takes the oath for his benefit. As to the proof of the execution of the bond by Hooper, I think it is sufficient. One subscribing witness was called, and proved that three of the parties signed in his presence, but that the bond was taken away for Hooper to sign, and returned with his signature, which the witness proves, having seen him write his name to the other bond. It must be treated as having been signed in the presence of a witness, and is properly proved. The questions for you are. whether the bond was false and fraudulent, whether it was executed by the defendants, and whether they had not such knowledge of its character as to make them responsible in justice, in reason, and in morality, for the execution of it, in violation of the statute. The jury retired, and after an absence of about fifteen minutes returned with a verdict of guilty. The defendants were thereupon immediately sentenced to one year’s imprisonment.

• HOFFMAN, District Judge. The claim in this case was confirmed by the board, an appeal having been taken on the part of the United States, but the cause has been submitted to' this court without argument, or the suggestion, on the part of the appellant, of any objection to the validity of the claim. The claimant, and those under whom he derives title, appear to have been in possession of the premises in question for nearly twenty years; and though the original title delivered to the interested party has been recently lost, we agree with the board in considering the secondary evidence of its contents as sufficient. In all these cases, the evidence from the archives is perhaps even more satisfactory than that afforded by the production of an alleged original title; for the facilities for the commission of a forgery of this single paper axe far greater than are offered for the perpetration of the same crime, when numerous documents have to be forged and subsequently introduced among the archives. A list of the latter has long since been made, and no new- expediente could now be placed amongst them without imminent risk of detection. In this case the record of the pro ceedings is full and minute, and the character of the documents and the number of the signatures afford intrinsic evidence of genuineness. If to this be added the fact of long continued possession, from a date anterior to the provisional grant, we are unavoidably led to the conclusion that the grant must have issued at the time and in the terms alleged by the claimant. We think a decree of confirmation should be entered. [The case was subsequently heard iipon objections to survey. See Cases Nos. 16,181-16,183. The final decree locating the claim was affirmed in 1 Wall. (68 U. S.) 582.]

BILLINGS. District Judge (charging iury). The indictment charges that the defendants Henry Peychaud and Robert H. Shannon conspired with each other, and with the several other persons named in the indictment, and with divers other persons to the grand jury unknown, to defraud the United States of America of the sum of .$200.000. the property and the moneys of the said United States; that the firm of Bellocq. Noblom '& Co. had preferred a false claim against the government of the United States in the court of claims for the proceeds of 1,851 bales of cotton, upon which they alleged they had made advances, and which they had the right to reduce to possession, the same having been seized by the federal military forces as captured or abandoned property; that said cotton was situated on the plantations of various parties, planters, in the parishes of Avoyelles, St. Landry, and St. Martin, within the state of Louisiana; that the defendant Henry Peychaud subsequently became the syndic of the said firm of Bellocq, Noblom & Co., and on the 23d day of March, 1874, filed an amended petition in the court of claims as such syndic, in which he alleged that the firm of Bellocq, Noblom & Co. were the owners of the said cotton; that all of said cotton was purchased and paid for, or taken for advances on the same, during the years 18G1 and 1862, and prior to the 1st day of May, 1862. This petition is sworn to in the follotv-ing language; “Personally appeared, before me, Henry Peychaud. syndic aforesaid, a resident of the city of New Orleans, La., who, being first duly sworn, deposeth and saith that he is the claimant above described in the above petition: that no assignment or transfer of said claim, nor any part thereof, nor any interest thereof, has been made, except as in said petition stated; that the claimants are still entitled to the amount therein claimed from the United States, after allowing all just credits and offsets; and that he believes the facts as stated in the said petition are true.” The indictment then proceeds to allege that, by the presentation of false untruthful testimony and deposition of witnesses, and of false and untrue exhibits and prooofs presented to the judges of the said court of claims, a judgment was fraudulently obtained by the defendants for the said sum of $296.000 against the government of the United States; that said Henry Peychaud subsequently received the payment of the said money. The indictment then proceeds to allege various overt acts of the several persons charged with this conspiracy, who, it is alleged, well knew that the whole claim was a fraud upon the government; that said Pey-chaud appropriated, of said moneys, the sum of $50,000. to his own use; that, in furtherance of the said conspiracy, the said Henry Peychaud did unlawfully agree and contract with Theodore Vallade, one of the defendants, to give said Vallade a valuable consideration, to the grand jury unknown; that he, the said defendant Vallade, should appear as a witness in said case, and give testimony which should be used in said court of claims, in order to procure the said judgment; that the testimony of the said Val-lade was in all material matters false and untrue, and was fraudulently obtained and used by the said defendant Henry Peychaud. Other overt acts are charged in the indictment to have been committed by the other alleged conspirators, which it is not necessary for me here to enumerate. The indictment alleges that the conspiracy on the part of the defendants was formed within the district of Louisiana, and was carried out and consummated in part within this district, and in part within various other districts of the United States. So far as relates to the time at which the offense is alleged to have been committed, I charge you, as matter of law, that a conspiracy is a continuous thing; and, if you find that a conspiracy has been established in the manner and form as alleged, and that the conspiracy continued down to and after the 10th day of June, A. D. 1874, the date charged in the indictment, and that the overt acts charged were committed subsequently, and during the continuance of the conspiracy, that in that case the offense charged has been committed. As to the place of the commission of the offense the general rule, under the constitution of the United States, is that a party can be tried for an offense only within the district in which it was committed. The exception is that, where an offense has been commenced in one district and consummated in another, the venue may be laid and the trial may be had in either district. If you find, as a fact, that the conspiracy to do the unlawful act alleged in the indictment was formed within the district of Louisiana, and in part executed here, and that the offense was consummated in the United States, but in some other district than the district of Louisiana, but that all that was done, was done in pursuance of the conspiracy here formed, then, so far as relates to venue, the offense is cognizable by the United States courts within this district. This indictment is framed under section 5440 of the Revised Statutes of the United States, which provides that, “if any two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner, or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty of not less than $1.000 and not more than $10.000, and to imprisonment for not more than two years.’r It was incumbent upon the prosecution, in order to establish the case against these defendants, to prove to the satisfaction of the jury that there was a conspiracy on the part of these two defendants, or one of them, with some one or more of the persons named in the indictment, to defraud the government of the United States, by means of the collection of this claim, through and by means of the .iudgment obtained in the court of claims, and, further, that some one or more of the overt acts charged in the indictment were committed by one or more of the persons alleged and proved to have been conspirators. First, as to the existence of the conspiracy. I will give you the definition of the nature of a criminal conspiracy, and an exposition of the evidence which may be adduced in support of it, in the language of one of the ablest, of English writers upon the subject of criminal law: “The evidence in support of an indictment for conspiracy is generally circumstantial, and it is not necessary to prove any direct concert, or even any meeting of the conspirators, as the actual fact of conspiracy may be collected from the collateral circumstances of the case. Although the common design is the root of the charge, yet it is not necessary to prove that the defendants came together, and actually agreed in terms to have the common design, and to pursue it by common means, and so to carry it into execution, because in many cases of the most clearly established conspiracies there are no means of proving any such thing. If. therefore, two persons pursue by their acts the same object, often by the same means, one performing one part of an act, and the other another part of the same act, so as to complete it, with a view to the attainment of the object they were pursuing, the jury are at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object.’’ The conspiracy is set forth in the indictment with great fullness, and it is alleged that it consisted in the combination for the presentation and collection from the United States through the court of claims of a false and fraudulent claim between divers persons and these defendants. In the first place it must be shown that there was this combination for that object.; that is. to effect the presentation and collection of this claim through the defendant Feychaud. as syndic of the estate of Bellocq. Noblom & Co.; (21 that this claim was false; (31 that its false character was known to the defendants. The next question, then, for the jury to determine. is. excluding for a moment the question of lawfulness or unlawfulness, was there a combination, on the part of the defendants and others, in which each labored with the common purpose of collecting this claim? íhe evidence which has been put before you by the government tends to show that the defendant Peychaud, as syndic, presented the claim; that the evidence was taken before the defendant Shannon under circumstances and with an agreement upon which I shall hereafter speak. The evidence on this point is not contradicted, nor attempted to be contradicted. If. then, this combination existed to collect this claim, the next question for the jury to consider is. was this a false and fraudulent claim? In this connection I will call the attention of the jury to the statute of the United States under which all petitioners or claimants have to act in the court of claims. The act of February 26, 1853, being an act entitled “An act to prevent frauds upon the treasury of the United States” (10 Stat. 170), in section 1, provides that “all transfers and assignments hereafter made of any claim upon the United States, or any part or share thereof, or interest therein, shall be null and void unless the same shall be made and executed after the allowance of such claims and the ascertainment of the amount due and the issuing of the warrant for the payment thereof.” And the act to provide for the collection of captured and abandoned property, found in 12 Stat. 820, provides that “any person claiming to have been the owner of any such captured and abandoned property may at any time within two years, etc., prefer his claim to the proceeds thereof in the court oí claims and on proof to the satisfaction of the court of his ownership of the said property and his right to the proceeds thereof, after the deduction of any expenses, may receive the proceeds.” It will thus be seen that to have enabled the defendant Peychaud to have brought the claim which he, as syndic of the firm of Bel-locq, Noblom & Co., presented to the court of claims, within these statutes, the interest of Bellocq, Noblom & Co. in this cotton must have existed at the time of its seizure by the federal military forces, to wit, in March. 1862, and that any transfer of any claim against the United States, arising out of the seizure of this cotton, after that time, or the transfer of any receipt or voucher therefor, would have been in violation of the statute. There has been no evidence offered that there was any transfer of any interest in the claim, from those who held the same, at a date after the issuance of a warrant in payment of the same by the treasury department, and the statute renders void all transfer of claims unless they are. made after the issuance of the warrant for their payment. It further appears, by these statutes, that any person seeking to recover the proceeds of captured or abandoned property, which had been seized by the United States and sold, and the proceeds paid into the treasury, must establish, in the first place, his ownership of said property, and his right to these proceeds. It was under these statutes that the claim of Bellocq, Noblom & Co. was presented by the defendant Peychaud, and was carried through the court of claims. It is insisted by the prosecution that, with the exception of a tew inconsiderable lots of this cotton, the firm of Bellocq, Noblom & Co. had no right, title, or interest in or to any of this cotton at the time of its seizure by the authorities of the United States. For the purpose of supporting this view, it has brought before you the testimony of many of the persons enumerated in the tabular statement attached both to the original and amended petition, from whose plantations the cotton was taken, who testified that they owned the same, and they have in exjjress terms denied that the firm of Bellocq, Noblom & Co., or the defendant Peychaud, as their syndic, had. at any time, any right, title, or interest in or to this property or its proceeds. There has been no contradictory testimony introduced to show any title in Bellocq. Noblom & Co., or in the defendant Peychaud as their syndic, excepting that which comes from the evidence given in the court of claims and the books of Bellocq, Noblom & Co. If the jury are satisfied that the claim of Bellocq. Nob-lom & Co., as presented by them, and by the defendant Peychaud as their syndic, to the whole of this 1,S51 bales of cotton and its proceeds, was a valid claim, then that conclusion would end this ease, and your verdict must be, “Not guilty”; for there could be no conspiracy to present and collect a fraudulent claim where the claim alleged to have been presented and collected was valid. But if, on the other hand, the jury are satisfied that the claim presented originally by Bellocq. Noblom & Co., and subsequently by Henry Peychaud, the defendant, as their syndic, was false or fraudulent, in whole or in part.—that is to say, if any portion of the 1,851 bales of cotton claimed by them, or him, the proceeds of which was recovered and received by him, did not belong to Bellocq, Noblom & Co.,—then to that extent the claim was false; and the jury will have to pass to the second question, did the defendants, at the time when they performed their several acts in the presentation or collection of this claim, know of the false and fraudulent character of the same? First, as relates to the defendant Peychaud. I shall first present to you in a summary manner the leading facts which the government has attempted to establish in this case, and then shall present to you the leading facts which the defense has attempted to establish. The government, in the first place, has offered in evidence the amended petition of Henry Peychaud. in which he avers, not only, as in the original petition of Bellocq, Noblom & Co., that the said firm had made advances upon this cotton, with the right to reduce the same into possession, but he avers that they became the owners, and that all of the said cotton was purchased by them or taken for advances on the same, and possession taken thereof, during 18(51 and 1802, prior to the 1st day of Hay, 1802. The second fact which the government has brought before you is an agreement between Pey-chaud, as syndic, and Bouchard and Bernard. In connection with this agreement, the government has offered the testimony of Bouch-ard. So far as his testimony is concerned, I deem it my duty to say to you that an accomplice or co-conspirator, who is called as a witness, and testifies to his own criminal acts, does not occupy the position of an ordinary witness, so far as relates to credibility. He may tell the truth in spite of his proclaimed turpitude, but, as a rule, he is not to be believed, unless and except so far as his evidence is corroborated by that of other witnesses, or by independent circumstances. It is, therefore, to the other evidence adduced by the government from other so rces that your attention will be largely directed. As to this agreement between Peychaud, as syn-dic, and Bouchard and Bernard, it is not denied that the agreement was executed by the defendant as „yndic. The agreement itself recites that it is for the services which Bouch-ard and Bernard were to render in this case, and Peychaud, as syndic, agrees to give them two-thirds of the amount which he should collect from the United States by means of the suit, they paying the fees of the various attorneys; that is to say, that the estate of Bellocq, Noblom & Co. was to receive one-third of the amount collected from the government, and Bouchard and Bernard the remaining two-thirds, they paying the various attorneys. It is for the jury to say what was the real purpose of this agreement, and what inference should be drawn from its execution, and whether a syndic, in a case where there were three lawyers already employed, and where he believed there was no fraud in a claim, would have engaged the services of a man of such reputation as the evidence shows Bouchard to have been, and would have left the conduct of such an important cause to him, and • would have reserved to the estate only one-third of the amount recovered. There was a second agreement offered in evidence by the government, which is a mere reiteration of this one for the most part, and which seems to have been written with the view of securing to the parties named as attorneys a lien or privilege upon the judgment which should be recovered. The next piece of evidence which the prosecution has introduced was the agreement between Bouchard and Bernard on the one part and Theodore Vallade on the other part, wherein it is recited that Vallade is the owner of 2(53 bales of the cotton, for the recovery of the proceeds of which suit had been brought by Bellocq, Noblom & Co., and wherein they agree that they will pay to him one-third of what may be recovered by the estate of Bellocq. Noblom & Co. on these 2C3 bales. This agreement is executed by Bouch-ard and Bernard, but is witnessed by Pey-chaud. The government has attempted to establish that there was an impediment as to these 2(53 bales of cotton arising from the claim of Vallade thereto, and that this agreement was made with him to remove that impediment; that, in pursuance of this agree ment, Vallade appeared and testified that the ■cotton which this agreement recites belonged to him was the property of Bellocq. Nob-lom & Co.; that Peychaud recovered the amount of the proceeds of these 203 bales; and that there was paid to Vallade one-third of this amount, being S14.S4S. If you are satisfied that Peychaud, the defendant, when he witnessed this agreement, or at any time before he collected the money upon the judgment which was rendered in the court of claims, knew what it contained, and knew that this cotton belonged to Vallade; that he afterwards used, or allowed to be used, in support of the claim which he as syndic preferred and collected, the testimony of Vallade, who testified in substance that the cotton belonged to Bellocq, Noblom & Co.; or if he ascertained these facts after the testimony had been used, but before he had made the collection,—then, and in either of these cases, so far at least as these 2G3 bales are concerned, he knew of the false and fraudulent character of the claim of Bellocq, Noblom & Co. thereto. In connection with this, the government has urged the payment by Peychaud of ?5,-000 to the defendant Shannon, of which I shall speak more particularly in another place, and of his leaving in the hands of Joseph S. Bouchard, as the attorney of A. Bouchard and Bernard, $14,84S, which, according to the receipt produced by the defendant Pey-chaud, signed by Joseph S. Bouchard as the attorney of his father, was “to meet other demands.” You will, in this connection, recall the testimony of Father Subileau. and you will say, from the amount left in Bouch-ard’s hands,—that is to say, from the numerical figures of that amount, as compared with the net proceeds of 263 bales,—and from all the circumstances in evidence before you, whether Mr. Peychaud knew that this amount was to go to Vallade. Whatever you find to be the fact as to this money being left in the hands of young Bouchard, you will consider, as reasonable men, in connection with this agreement of Vallade, witnessed by Mr. Peychaud, and with the other facts in this case. It is immaterial whether Pey-chaud paid the money to Vallade, or whether it was paid by Bouchard, provided Peychaud knew of Vallade’s ownership of the cotton, of Vallade’s testimony, and of its use in a suit against the United States wherein he was the plaintiff. It is for you to consider why the defendant Peychaud was selected to be the attesting witness to this agreement; whether he knew of the terms of the agreement which he witnessed; whether Vallade did or did not require that he should witness it, in order that, since the money was to go through the hands of Peychaud, he should have that added security that the proportion covenanted to be paid to him should reach its destination. You will observe that this paper recites that Vallade was the owner of these 203 bales of cotton to which Peychaud, as syndic, was at the time of its execution urging his claim in the court of claims, and that the agreement goes on to provide for the distribution of the proceeds in case there is a recovery by Peychaud as the property of Bellocq. Noblom & Co. I think these are the chief circumstances which the government has attempted to establish. On the other hand, the defense has adduced evidence tending to establish that the conduct of the cause pending in the court of claims was left chiefly to Bouchard. The books of Bellocq. Noblom & Co. have been introduced before you, as well as the evidence of several experts who have examined the same. And, lastly, by the testimony of many of our most excellent citizens, has been shown the high character of the defendant Peychaud, for a life of 60 years passed in their midst previous to this transaction. So far as the defendant’s knowledge from the books of Bellocq, Noblom & Co. is concerned, in a criminal ease there is no invincible presumption that a man had acquired the knowledge which a proper execution of his trust would have required him to gain. It is not a matter of arbitrary presumption. You are to take the books as they existed. You are to take the degree of access which the defendant Peychaud had to them, the magnitude of the claim, the duty which the defendant Pey-chaud owed, alike to the estate and to the government, to have made a satisfactory examination of this claim before he proceeded to make any affidavit as to his belief of its validity, and all the circumstances which have been given in evidence, and then are to say ■whether the defendant Peychaud knew, directly or indirectly,—that is, of himself or through others,—what the books said on tnis subject, and what was his belief as to the validity of this claim, both at the time when he made the affidavit, and during all the intervening time down to the period when he collected the money. If, at any period of this time, he believed the claim, or any portion of it, was fraudulent, then all his subsequent acts would be affected by this knowledge, and from that moment he would be deemed, in law, to have joined the conspiracy to collect a fraudulent claim. So far as relates to the proof of good character or the reputation enjoyed by the defendant Peychaud, the good character of an accused person is always a fact to be considered by the jury. It should lead the jury to scrutinize the evidence adduced in support of the commission of the crime charged, and their own process of reasoning upon that subject; and, further, should be considered as an independent fact in favor of the accused. Nevertheless, if. after this application of the testimony in favor of good character has been made, and this effect given to it, the whole evidence in the case is sufficient to warrant a conviction, the jury are not authorized to withhold from the other evidence its proper effect, or to refuse to draw from it the legiti mate conclusions. While good character is always an element to be considered, and there are cases in which it would furnish evidence which would create a reasonable doubt of guilt, there are also cases in which the former spotless character of the accused could not overcome the weight of testimony in support of guilt. That is to say, good character is always to be considered and weighed, but it is to be considered and weighed along with the other testimony, and must not be allowed to obscure from your observation the other testimony in the case. Again, it is urged by the defense that the defendant Peychaud was a mere syndic in his action with reference to this claim. That is to say. it is urged that he presented this claim, for the most part, as the representative of the estate of Bellocq, Noblom & Co., and those who were associated with him. If the evidence fails to show that any portion of the proceeds of this cotton was intended to be retained, or was retained, by the defendant Peychaud. beyond his commission as syndic, this fact does not obliterate the other facts you will find to have been established; but it is to be considered by you, along with all these other facts. It diminishes the strength of the motive for the commission of the crime charged, but, beyond that, leaves the other facts in the case such as you find the evidence to have established them to be. Next, as to the defendant Shannon. If the jury find there was a combination, and that the claim was fraudulent, then, as to the defendant Shannon the same inquiry must be made as 1 have stated should be made with reference to the defendant Pey-chaud, as to his knowledge of the falsity and fraudulent character of this claim. The prosecution have introduced evidence tending to show the fact that the defendant Shannon had an agreement by which he was to receive a contingent fee of $5.000 for taking the evidence in this case. An agreement of this nature, by a commissioner, with reference to the taking of testimony is open to very seriou.r objections; that it would expose the commissioner to severe criticism, and would open a. wide door for temptation to him. But it is not, necessarily, a guilty agreement. The jury are to judge whether, in this case, the agreement was evidence of any knowledge of the falsity of the claim, or of any understanding between the defendant Shannon and those with whom he made it that there was to be anything unfair or partial in the manner of taking the testimony. Bouchard has made a statement as to what passed between him and the defendant Shannon. In connection with the evidence relating to the defendant Peychaud, I have already laid down the legal propositions which should be considered by the jury in -weighing the testimony of a witness such as is Bouchard. There is the testimony of the witness Wilde, and there is a letter from the defendant Taylor, and also a letter from the defendant to J. S. Bouchard, which I think comprises all the evidence which has been urged against the defendant Shannon. On the other hand, you have heard the evidence of the younger Mr. Conrad, and of Mr. Rouse, who represented the government, and that of Judge Emerson, and you have had tiie manner in which the depositions were taken shown to you from the depositions themselves. In regard to the defendant Shannon no evidence as to general character-was introduced. In such a case the law’ assumes that the character of the accused is of ordinary fairness and respectability. The attorneys who have testified have testified that the method and manner of the defendant Shannon were, so far as they could perceive, proper and impartial, and it is for you to say, upon the whole evidence. whether you are satisfied that the defendant Shannon had a knowledge of the falsity of the claim, and fraudulently aided in establishing a false claim. If you find, from the evidence, that the defendant Shannon knew' that the claim was a false one. then he had a guilty knowledge. If you find that he did not know that the claim was false or fraudulent, and that the evidence taken before him was, so tar as he knew, truthful evidence, then he has not been affected w'ith any guilty knowledge. If you find that the combination is proved, and that the fraudulent character of the claim has been established, and that either or both of these defendants had no knowledge of the false or fraudulent character of the claim, then they are, or the one that had not such a guilty know'ledge is. entitled to an acquittal. If, on the other hand, you find that the conspiracy existed, and that both of these defendants, or either of them, knew of the false and fraudulent character of this claim at the time they participated and aided in presenting or collecting it, then the remaining question will be, w’ere any of the overt acts charged in the indictment committed? Because the rule of evidence in connection with a criminal conspiracy is that, where an unlawful combination is established, the act of one of the parties is the act of all. If, for example, the conspiracy has been established, and you find that the defendant Peychaud took out of the treasury of the United States this money charged to have been taken out by him, or any portion of it, during the continuance and in furtherance of the conspiracy, then his act is the act of all those w’hom you find, from the evidence, to have been conspirators, and who are named in the indictment. So far as the degree of proof is concerned, it is the duty of the prosecution to establish the case by evidence which excludes a reasonable doubt of the guilt of the accused. But the doubt which the prosecution must remove is an actual and substantial doubt, and not a mere possibility or speculation. Says one of the most eminent of the Améri- can jurists: “It is not a mere possible doubt, because everything relating to human affairs depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after an entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say, with a full and abiding conviction, as to the moral certainty of the truth of the charge.” [See Case No. 16,069.] The importance of the duty which you, as jurors, have been called upon to discharge, when duly considered, can scarcely be overestimated. Without trials by jury, on the one hand, would disappear much of the security of the citizen from the unjust and tyrannical forms of investigation, and the consequent imposition of undeserved punishment. On the other hand, without the fearless consideration of causes by juries, the government could not long administer its criminal laws, and its power to protect all would thus be seriously paralyzed. Much, therefore, not alone of the right of innocence to be protected, but of the efficacy of the law as a protective agency, rests in the intelligence and integrity with which jurors render their verdicts. Your verdict should not be the exponent of your sympathies, either for the government or for the accused, but should be a conscientious declaration of your judgment upon the evidence as it has been adduced before you.

HOFFMAN, District Judge. Objections to the surveys of these three ranchos have been filed on the part of the owners of E Pinole and of Las Juntas. It is contended that the Rancho Canada del Hambre has been so located as to embrace a considerable area which is clearly within the exterior limits of the Pinole and Las Juntas Ranchos without regard to the rights of election of the claimant of those two ranchos. In behalf of the claimants of the Cañada del Hambre Rancho, it is contended— (1) That the Del Hambre Rancho, as surveyed, does not include any lands comprised within the exterior limits of the other two ranchos, and, (2) That the Mexican government, by granting the Cañada del Hambre to the extent of 3 leagues, ascertained and declared that there was a sobrante or overplus between the two ranchos Pinole and Las Juntas, and those two ranchos cannot now be located so as to exclude the tract between them, which has thus been granted to another. To this it is replied that the claim for the Cañada del Hambre is fraudulent, and it is contended that the claimants have a right to show that fact, notwithstanding that the validity of the grant has been affirmed by the United States tribunals; the claimants of the adjoining ranchos not having been parties to that proceeding, nor even permitted to intervene in it for the protection of their rights. The decree in the Del Hambre case con-iirms to the claimants “so much of the land known at the date of the grant as the ‘Cañada del Hambre,’ as shall remain overplus from the ranchos of Pinole and Mr. Welsh, not to exceed three leagues after the latter shall have been duly located and surveyed by the proper officer.” By the terms of this decree it is evident that those three ranchos must first be located and surveyed. In determining, then, the true location of the three leagues of the Las Juntas Rancho, it will be necessary, first, to ascertain what were the exterior limits of the tract granted; and, second, how far the right of election to the particular location of that quantity of land is modified or controlled by the alleged grant to Soto of the Cañada del Hambre. The ex-pediente in the case of Las Juntas shows that on the 9th of June, 1834, Welsh petitioned for the place called “Las Juntas,” on which he says he had resided two years, as shown by the document annexed; that he had cattle, a house, fields, etc. The “document annexed” was a previous petition to the alcalde for two leagues in the place called “Las Juntas,” and an order of the alcalde, dated October 20, 1832, conceding it as a loan, subject to the approval of the government. On the margin of the petition to the governor is an order of reference to the ayuntamiento of San José and the padre of the mission for information. No report appears to have been made ny either. On the 9th of February, 1844, Welsh presented a petition, in which, after referring to his unsuccessful efforts to obtain the place called “Monte del Diablo,” he states that in 1832 he obtained a loan from the alcalde of the place called “Las Juntas,” which, as shown by the map, lies to the west of the tract of Juana Sanchez and of the Monte del Diablo. He therefore solicits the place which he has occupied for ten years, and, referring to the map, says it is bounded towards the north by the Arroyo del Hambre, east by the Arroyo de las Nueces, south and west by lands of Pacheco and Moraga; that it is all pasture land, has but one permanent spring, and that its greatest extent from north to south may be three leagues, and from east to west, one-half to three-fourths of a league. On the same day, Pico, alcalde of San José, certifies that the western part of Las Juntas has been occupied for 13 or 14 years by Welsh, and that it has never belonged to any other individual. That its limits are: to the northward, the Arroyo del Hambre; to the eastward, the Arroyo de las Nueces, which also divides it on the south from the place of Lorenzo Pacheco; and on the west it is bounded by Señor Moraga. On the 19th February, Jimeno, the secretary, to whom the petition was referred, reports that from October, 1832, until 1838, Welsh had occupied the land with a house and property. That he left it on account of sickness, which was also the reason why the proceedings commenced on the 9th June, 1834, to obtain the title, were stopped. He, therefore, recommends the grant, as it can injure no one, the place being surrounded by known arroyos. And he deems it unnecessary to-refer to the colindantes, as the alcalde of San José has given his certificate. On the . 20th February the governor makes his decree of concession, in which he describes the land as “bounded by the Arroyo de las Nueces and by that of El Hambre, without prejudice to the boundaries of Lorenzo Pacheco, Juana Sanchez, Moraga or Martinez,” and orders the title to issue for two square leagues. The grant issued on the same day. It describes the land as on the decree of concession, refers to the map in the expediente, and orders the land to be measured, reserving the surplus. The decree of confirmation is for two leagues, and describes the land as bounded east by the Nueces and lands of Juana Sanchez; south, by the Nueces and lands of Lorenzo Pacheco; west, by said arroyo and lands of Moraga; and north, by the Arroyo del Hambre and lands of Ignacia Martinez. It might seem thai there could be no difficulty in ascertaining a tract of which all the boundaries are well known arroyos. On referring to the diseño, we find that the Arroyo de las Nueces is represented as rising in the sierra on the west. After following in a southerly direction for a considerable distance it makes an abrupt bend, and, joined by two tributary streams, it runs in a direction nearly north into the Straits of Car-quinez. Those straits are not by name laid down upon the map, but the creek is represented as falling into what are inscribed “Esteros.” The topographical map exhibited in the cause shows the creek, at or near the point where the diseño represents it as falling into or becoming an estero, enters a salt marsh, through which it pursues a somewhat sinuous course to the straits. The “Arroyo del Hambre” is also laid down upon the map, but it is represented as flowing from west to east, nearly at right angles to the course of the other streams, and as falling into the esteros at a short distance from the mouth of the Nueces. The tract delineated thus assumes nearly the shape of an inverted triangle—the Nueces curving around its lower extremity as has been described, and forming the two legs of the triangle, while the Del Hambre, running from west to east, forms its base. It is found, however, that the draughts-man of the diseño, though he has correctly laid down the courses of the streams on the east and west, has wholly mistaken that of the Del Hambre. The latter stream rises in the hills on the west not far from the source of the Nueces, or Reliez creek, as it is called, and flowing in an opposite direction, and in a course nearly due north, falls into the straits at a considerable distance to the west of the mouth of the Nueces. The Del Hambre, therefore, cannot serve as a northern boundary. If admitted as a boundary at all, it will form a portion of the western boundary, the northern- boundary being the Straits of Carquinez. Under these circumstances, it is contended on behalf of the claimants of the Rancho Cañada del Hambre that the northern boundary of Las Juntas, as called for in the papers, not being found to exist in nature, must be disregarded, and the quantity called for must be surveyed within the other lines; that if the straits had been intended as a northern boundary, they would have been mentioned in the papers, or in some manner referred to; that as the northern boundary called for in the papers cannot be found, the court must fix an imaginary line, enclosing the proper quantity between it and the other natural boundaries; that the tract is described as surrounded by arroyos, whereas it has arroyos only on three sides of it, and the fourth side must of necessity be bounded by an imaginary line, so as to include the required quantity. It will be perceived that all these propositions rest upon the hypothesis that the intention of the grantor was to fix a northern boundary for the tract, and that he designated the Del Hambre solely because he supposed it to flow in the direction represented on the diseño, and across the land so as to form a northern boundary. If such was the predominant idea in the governor’s mind, it might, with much reason, be urged that, as the brook cannot serve as a northern boundary, the call for it must be rejected, and the northern line be determined by quantity, or by drawing a line corresponding in position and direction to the supposed course of the Del Hambre. But, on the other hand, it may well be supposed that the intention of the grantor was to adopt certain well known and natural objects aS the limits of the tract; and though, in the rude sketch submitted to him, the position and course of one of the brooks may have been erroneously laid down, yet his intention was to extend to that brook wherever it might, in fact be found. The Arroyo del Hambre is described by all the witnesses as publicly and notoriously known by that name since ISOS. It derived its name from the circumstance that a body of Spanish soldiers, encamped near it, underwent in that year, much suffering from hunger. The same name was applied to the Bolsas, towards its upper waters, and to the cañada, or narrow valley of level land through which it flows as it approaches the straits. This Cañada del Hambre is represented on the diseños of the ranchos on the east and on the west, where its position and course are indicated with considerable accuracy. The grants for both of these ranchos are of older date than that for Las Juntas—one having been issued in 1834, and the other (Pinole) in 1842. It may therefore be supposed that the governor was not unacquainted with the true course and position of the Del Hambre. That the brooks were “known” appears from Jimeno’s report, in which it is stated that the place is “surrounded by known arroyos,”—an observation which is cited by the counsel for the Soto claim as indicating that Jimeno must have supposed the Del Hambre to flow across the tract from west to east, so as to join its northern boundary, but which appears to me equally accurate and natural, if Jimeno had been acquainted with the true course of the stream, and knew that the land solicited was bounded on three sides by known arroyos, and on the fourth by the straits. It is not pretended that the lands of Martinez extended further east than the Cañada or Arroyo del Hambre; and yet throughout the whole proceedings in the case of Las Juntas, from the petition of the alcalde in 1832, down to the grant, the rancho of Martinez is mentioned as one of its boundaries. The alcalde, who in 1832 conceded to Welsh two leagues, by way of loan, states the lands loaned by him lay between the two brooks, the Nueces and the Del Hambre; and the proofs show that so early as-, Welsh built a corral, and employed Vaqueros, who resided on the Del Hambre, at a short distance from its mouth. All the witnesses concur in the statement that the Del Hambre was universally recognized as the boundary between the two ranchos, and that Welsh, though his house was -built further south, and at the lower part of the tract, always claimed to that stream. The attempt made to identify the Arroyo del Hambre of the diseño with Dry creek is wholly abortive. For, independently of the overwhelming mass of testimony, which establishes beyond doubt what creek was known, from a very early period, by the name Del Hambre, the diseño itself represents Dry creek in its true position,- and by the name “Arroyo Seco,” which, translated, it still retains. It is also to be noted that neither the concession nor the grant call for the Del Hambre as a northern boundary. Those documents merely describe the land as bounded by the Arroyo de las Nueces and by .that of Del Hambre. . It is only by referring to the petition, the informes, and the diseño that we discover that that arroyo was supposed to be a boundary on the north. It has, for these reasons, seemed to me wholly inadmissible to construe the grant as intended to designate the Del Hambre as a northern boundary; and, if it cannot form such a boundary, to reject a call altogether. On the contrary, it should be construed in accordance with the universal understanding of the colindantes and neighbors from a period antecedent to the date of the grant, as calling for the Del Ham-bre creek and the lands of Martinez as boundaries, notwithstanding that the course and position of the creek may have been erroneously represented on the diseño. The next inquiry is whether the right of the claimants of Das Juntas to select the three leagues granted within the exterior limits of the tract has been modified, and ought now to be controlled by the alleged grant to Teo-dora Soto. It may be admitted that if the Mexican government have within the exterior limits of the grant to Welsh, ascertained and cut off a sobrante or excess beyond the quantity granted, and have granted this sobrante by metes and bounds, or by other adequate description, the sobrante grantee would have the right now to insist that Las Juntas should be so measured as not to include the tract subsequently granted to himself. But the inquiry whether such a grant was, in fact, made, was had in a suit between the claimants under the Soto grant and the United States. The claimants of Las Juntas were not permitted to intervene for the protection of their rights, and have not been heard. The loth section of the act of 1851 declares that the final decrees in this class of cases shall be conclusive only as between the United States and the claimants, but shall not affect the interests of third persons. It is evident that the claimants of Las Juntas are “third persons,” and that their interests would be seriously affected if the con-firmes of the Soto grant are permitted to deprive them of the right of locating their grant so as to embrace the most valuable land within its exterior limits. I proceed, therefore, to inquire, notwithstanding the decree of confirmation, whether, as between the claimants of the Las Juntas and those of the Cañada del Hambre, the latter have, by virtue of a valid grant of the sobrante, the right to control the election of the former as to the location of the tract. The expediente in the Soto case discloses that on the 4th of May, 1841, Teo-dora Soto presented a petition, in which she stated that about four years before, her deceased husband, Barcenas, had obtained a provisional grant for the Cañada del Hambre, and had placed numerous cattle upon it; that soon after a fire compelled him to remove from the place, and that shortly afterwards he died. She therefore asked a grant of the land, even though it be provisionally, and until she can present a sketch of it. On the 4th May, 1812, José Castro, the ex-prefect, certifies that in 1839 he granted the land to Bar-cenas provisionally, and that the expedienté ought to be amongst the papers of the prefecture. On the 6th of May, Estrada, the then prefect, certifies that the expediente is not found in his office. On the 8th May, the governor orders that a provisional grant issue. The petitioner presents a map, etc., subject to the usual reports. There is no reason to doubt the genuineness of these documents. They are found in the archives, and bear every mark of authenticity. There was also produced by the claimants a translation of an alleged grant, dated December 14th, 1841, to Teodora Soto, of the Cañada del Hambre, “not to exceed three leagues of that which shall be left over after the ranchos of Welsh and Martinez shall have been measured.” This document, it was alleged, was delivered by the claimant to M. G. Vallejo, who caused it to be translated. Vallejo swears to the genuineness of the original, and he and Frisbie to its loss. The translator swears to the accuracy of the translation. Proofs were also adduced to show occupation of the land by Soto from a period anterior to the date of the grant. The decision of this court was rendered at a time when the completeness and value of the archives, both as negative and positive proofs, were imperfectly understood; nor had the court then become aware how unreliable, in most instances, is the parol proof offered in support of grants of which the archives contain no trace. As the genuineness of the expediente was not questioned, it was not considered by the court most probable that a grant was in fact issued in accordance with the governor’s order, and that he might have deemed the rights of the colindantes, Welsh and Martinez, sufficiently protected by directing the three leagues to be taken only out of the sobrante which should result after the adjoining ranchos were measured. Under this view, it was supposed that the translator had mistaken the date of the grant, and that it in fact issued in 1842, after the date of the governor’s -order of May 8th, of that year. The grant intended to be confirmed was therefore a supposed grant, dated subsequently to May, 1842; but by some oversight the decree refers to and confirms the alleged grant of 1841. That no grant could have issued at thai date is evident: 1. No petition or document whatsoever, relating to such a grant, is found in the archives. 2. None was believed to exist; else, why consult Estrada as to a previous provisional concession by a prefect? 3. Teodora Soto’s own petition of May, 1842, asking for a concession of the Oañada del Hambre, even “tho’ it be provisional,” negatives the idea that she already had an unconditional grant for the same lands; as does also her reference to a supposed provisional concession to her husband, some four- years before, and her entire silence as to an absolute grant to herself, made less than five months before the date of her petition. 4. The governor, if he made the grant of 1841, must be supposed to have granted the sobrante of two ranchos, for neither of which a title in full property had as yet issued; and this without any evidence that the limits of those ranchos contained a sobrante of three leagues, or any other quantity. 5. The subsequent grants of Pinole and Las Juntas omit all mention of the alleged previous grant of the Canada del Hambre, although the Pinole grant calls for the cañada as one of its boundaries, and the Las Juntas is bounded by the Arroyo Del Hambre. In the latter grant the governor is at pains to declare that it is without prejudice to the boundaries of Pacheco, Juana Sanchez, Mora-ga or Martinez, but he does not mention Teodora Soto, who is alleged to have obtained her grant two years previously. Por these and other reasons that might be adduced, I think it proved beyond a doubt that no grant could have issued at the date mentioned by Vallejo. It may be said, however, that a grant may have- issued in 1842, and that the translator has made a clerical error in copying it. But this hypothesis appears inadmissible. In the document presented not only is the date (December 14th, 1841) attached, but a translation is given of the habilitation at the top of the page, by which it appears that the paper was habili-tated for the years 1840 and 1841. It would seem, therefore, that there could have been no mistake in the translation. That no such title could have issued before June 2d, 1842, the date of the Pinole grant, may be inferred from the fact that that grant makes no mention whatever of the Canada del Hambre rancho, though the cañada itself is referred to as a boundary. On the 8th of June a grant is made for the Bancho Boca de la Cañada del Binóle, bounded by the ranchos of Welsh, Martinez, and Velencio; but without reference to any rancho of Soto, though it appears that she was the daughter-in-law of the grantee, and then residing on the Bancho Boca de la Canada del Binóle. And finally, when, in 1844, Las Juntas was granted to Welsh, without prejudice to the ranchos of his neighbors, some of whom are expressly mentioned, all reference to any previous grant to Soto is omitted. It has already been shown that the grant of 1841, relied on by the claimants, and the only one as to which proofs were offered, could not have been issued. It has been shown that the paper which was translated must have been dated in 1841, for it is impossible to suppose that the translator would not only have mistaken the date, but the purport of the printed habilitation at the head of the paper, which shows it was made for the bienno 1840 and 1841. The grant, therefore, which was translated, must have been a forgery. Gen. Vallejo and Frisbie are the only witnesses who testified to having seen it. The direct proof of its genuineness consists of the statements of Gen. Vallejo alone. It follows that if any grant did issue subsequently to the date of the governor’s order of May 8th, 1842, it has not been produced, nor has any evidence been taken to prove its existence, The hypothesis, therefore, of a grant in 1842, is an assumption wholly unsupported by proofs. The proceedings of the government with regard to the three other ranchos which have been referred to, and especially with regard to Las Juntas, render it highly improbable that up to 1844, the date of the latter grant, Teodoro Soto could have been known as a colindante of either. But there is found in the records of the former government evidence which I cannot but regard as decisive of the fact that no grant could have been issued to Teodora Soto. On the day on which the title for Pinole issued, a communication was addressed to the justices of the peace of Contra Costa, by Estrada, the prefect, in which he informs him that on that day he had received a dispatch from the secretary of state, notifying him that a title had been issued to Martinez for El Pinole, with all the lands pertaining to it, and ordering that the justices of the peace for San José, Contra Costa and San Francisco be informed of the order, that they may make it known to those in the neighborhood, and particularly to Teodora Soto, who is to be informed that the pretension she has made to occupy the Cañada del Hambre is not admissible, because it pertains to Pinole. The genuineness of this document seems indisputable. It is traced to the possession of Estudillo, at that time al-calde of the district in which the land lay, and the borrador or office copy of the dispatch from the secretary to Estrada is found in-the archives. It proves what was the final result of Teodora Soto’s application of May, 1842, and definitely establishes that her petition was rejected. It is unnecessary to do more than refer in general terms to the mass of testimony which disproves the statement of Vallejo that Teodora Soto occupied the cañada from the year 1829. In 1845 and 1846 she was living at the rancho of Boca del Pinole, the home of her mother-in-law, where she put up the walls of an adobe. This she would hardly have done if she owned three leagues in the immediate neighborhood. Several witnesses, who have long resided in the cañada or its vicinity, testify that they have never heard of any claim of Teodora for lands in the Cañada del Hambre. Another witness deposes to a declaration of Teodora that she had no land. And numerous witnesses testify that she went to the cañada for the first time in 1847. If to this be added the fact that in her deed to James she describes the grant as for one league, in her petition to the board as for two leagues, while in her deed to Vallejo no description whatsoever is given, together with the fact that Vallejo, when testifying before the board, was directly interested in the claim, it cannot, I think, be doubted that Teodora Soto never obtained a grant from the Mexican government. .The claimants of Las Juntas, being thus found to have the right to elect the quantity granted within the exterior limits, without regard to the alleged grant to Teodora Soto, it remains to be considered whether that right has been properly exercised. The rancho was, in 1850, surveyed under the direction of the claimants, and the exact quantity of three leagues was located so as to extend from the Las Juntas to the straits, and embracing all the land between Arroyos del Hambre and Nueces, from the mouth of each of those streams up to a point on the Del Hambre, some two miles from the town of Martinez, from which point a line was measured in a southeast direction to Arroyo de las Nueces, so as to include the house of Welsh, and to leave the sobrante or excess not included on the southwesterly side, bordering on the Reliez creek, and contiguous to the lands of Moraga. This survey was recognized and adopted in the decree of the probate court of Contra Costa county, by which the lands of William Welsh were divided amongst his heirs. Nearly all the lands thus included have been sold by the claimants of Las Juntas; the first sales having been made so far back as 1849 of lots in the town of Martinez, situated at the mouth of the Arroyo del Hambre. TheN aggregate amount received by the claimants on these sales exceeds the sum of $60,000. On the lands so sold, especially those near the town of Martinez, the purchasers have made improvements to the value of more than $100,000. The land excluded from this survey, and admitted by the claimants to be public land, has been in great part taken up as public land by settlers, who have made improvements thereon to the value of $25,000. These lands are included in the official surveys. It is also shown that since the survey of 1850, the claimants have uniformly declared that they claimed no land outside of that survey. It thus appears that the claimants have, in the most emphatic and solemn manner, made their election of the three leagues granted to them; that important interests have grown up and large expenditures on the faith of that election, not only by the purchase and improvement, at great expense, of lands within the survey, but by the settlement and improvement under the laws of the United States, of lands without it. No objections to the location of the grant thus elected by the claimants of Las Juntas are suggested on the part of the United States, or of the owners of the adjoining ranchos, except, of course, the claimants under the confirmation to Teodora Soto. • As the latter, for the reasons already given, cannot be heard, there seems no reason why the important interests which have vested under the location adopted by the claimants at so early a date, should now be disturbed. I think, therefore, that the official survey of Las Juntas should be rejected, and the land surveyed in accordance with the claimants’ survey of 1850. The objections to the official survey of El Pinole remain to be considered. It appears from the expediente that in August, 1834, Martinez presented a petition to the commissioners on colonization, setting forth that in 1823 he had obtained a grant for the place called “Pinole y Cañada del Hambre,” and that he had lost or mislaid it. The commissioners recommended that the papers be returned to him, that he may make his application in due form. The same proposition was presented to the departmental assembly. In the report of the committee on colonization and vacant lands, it is noticed that Martinez had represented to them that he was in possession of the place called Pinole and Caña-da del Hambre, along the Straits of Carquinez; that he had lost or mislaid the title issued to him by Arguello, in 1832. They therefore propose “that the papers be returned to him, that he may present the same in due form.” This report was approved by the assembly. On the 10th November, 1837, Martinez presented his petition to the governor, setting forth that in 1823 El Pinole was granted to him, but that the paper had long since been lost or mislaid; that he was therefore obliged to present a second petition for the place already solicited, being three leagues, but that now, from the increase of his cattle, it was necessary that there should be granted to him one sitio more, so that he may have an extension of four leagues; that although this may appear considerable, yet the greater part is not fit for pasturage, being composed of rocky hills and swamps. “The better portion is on the side of the ‘Sisear,’ and the Cañada del Hambre,” wherefore he asks that his petition be granted as charged by the supreme government in the annexed document. The document annexed is an order from the president of. Mexico, directing the governor to grant to Martinez the lands solicited. On the 25th December, 1837, the governor refers Martinez’ petition to the ayuntamiento of San Francisco, reminding them that the petition is for four leagues. On the 10th September, 1838, the ayuntamiento reported favorably to the petition for a grant of four leagues. On the 1st June, 1842, the gov ernor makes bis decree of concession in which he declares Martinez owner of the place called “El Pinole,” having for limits the mouth of the Cañada del Pinole, thence eastwardly with the same to the Corral de Galinde, from this point to the Cañada del Hambre, and along it (por ella) to the Straits of Carquinez, and terminating at the mouth De la Cañada del Pinole on the Bay of San Francisco. The final title issued on the same day. It describes the land in the same terms as the decree of concession. The third condition declares its extent to be four square leagues, a little more or less, as explained on the diseño, and it directs the magistrate who shall give the possession to cause it to be measured, reserving the surplus to the nation for its convenient uses. On the same day the communication heretofore referred to was addressed to the justice of the peace of Contra Costa and San Francisco, directing that Teodora Soto be informed that the pretensions to the Cañada del Hambre were inadmissible, as the land belonged to Martinez. The decree of confirmation describes the boundaries precisely as they are given in the grant. No quantity is specified, but the usual reference, for greater certainty, is made to the map and expediente, and to the deposition of W. A. Richardson. It is contended that the grant is by metes and bounds, and that all the land within the exterior limits should be surveyed to the claimants. But this claim seems to me wholly inadmissible. It had never been considered by this court, that when the grant mentioned a certain quantity of land, adding the words “poco mas 6 menos,”—“a little more or less,”— any greater excess over and above the quantity specifically mentioned could pass than a mere fractional part of a league, which was the common unit of measurement. Such seemed the reasonable, though, of course, somewhat arbitrary, interpretation of the phrase alluded to, and such an operation was attributed to it in those cases only where all the exterior boundaries were well defined, and where the proceedings showed that the governor intended to grant all the land within the limits specified, and where it appeared that the quantity within those limits exceeded the number of leagues mentioned only by such an excess as might reasonably be deemed to have been contemplated and provided for by the introduction of the words “poco mas 6 menos.” But this view was held by the supreme court to be erroneous, and the words “poco mas ó menos” were entirely disregarded, as “having no place in a system of surveys like the American.” -The quantity embraced within the exterior limits of El Pinole is about seven leagues,—nearly twice the quantity mentioned in the grant. It is plain, then, that neither the previous ruling of this court nor the decisions of the supreme court would authorize the confirmation of this claim for a greater quantity than four leagues. It is said that the case of U. S. v. Rosa Pacheco [22 How. (63 U. S.) 225], is an authority for the confirmation of the whole tract; but the cases are essentially different. In that case, not only were all the boundaries distinctly mentioned, but the governor was informed by the petition and by the reports of the informing officers (by whom testimony was taken as. to the extent of the land) that the tract solicited was two leagues in length by about two leagues, or little more or less, in width. With this information he proceeds to grant “the tract solicited,” specifying all its boundaries; and the grant in that form was approved by the departmental assembly. In making out the title, however, the draughtsman, it would seem, by a clerical error, mentioned in the condition that the land was of the extent of two leagues. The supreme court held that all these circumstances showed an intention to grant a tract of the dimensions reported to the governor, and confirmed the tract to four leagues. But in this case all the proceedings show that quantity, and not boundaries, was the prominent idea in the governor’s mind and in that of the grantee. The petition, as we have seen, states that the former grant, which had been lost, was for three sitios, but that he now asks for an additional sitio; that its extent asked for may seem large, but that the greater part is unfit for pasturage, etc. In his order of reference to the ayuntamiento, the governor is careful to remind them that the quantity solicited is four leagues. In the report of the ayuntamiento, the quantity of four leagues is again referred to; and, finally, in the grant, the extent of land granted is again specified as four leagues, “a little more or less,” and it is ordered to be measured, the surplus to remain to the nation for its convenient uses. It will be perceived that this ease is almost the converse of that of Rosa Pacheco, • for here the intention to ask for and to grant a definite quantity of land is apparent throughout the whole proceedings. To permit, under such circumstances, a tract of land, of nearly double the extent solicited, to be taken from the public domain, seems to me wholly inadmissible. The decree of the board does not restrict the confirmation to any specified quantity; but, in their opinion, the deposition of Richardson is referred to as showing that there are not more than four leagues in the grant. The omission, therefore, to restrict the confirmation to the quantity mentioned in the grant is evidently due to the reliance placed on the erroneous statement of Richardson, the claimant’s own witness, as to the extent of land included within the exterior limits. I think it clear that the claimants are only entitled to four leagues of land, to be located within the exterior limits of the grant at their election. For the reasons already assigned with regard to Las Juntas, the election of the claimants of El Pinole cannot now be controlled by the representatives of Teodora Soto. The exterior boundaries, within which the election is to be made remain to be considered. The only serious question appears to be with regard to the eastern boundary. The boundaries mentioned in the grant are: the mouth of Cañada del Pinole, thence eastwardly with the same to the Corral de Galinde, and from this point to the Cañada del Hambre, and along or through it (“por ella”) to the straits, and terminating at the mouth of “El Pinole.” It is urged that by the terms of the grant, and from the language of the petition, it is plain that the land was bounded by, but did not include, the Cañada del Hambre. In the last act of the expediente given in the printed brief filed by the counsel for Teodoro Soto the petition is translated so as to read that: “The extent of land solicited appears large; but the greater part is not fit for pasturage, being composed of stony hills and marshy lands. The last sitio solicited lies in the direction of the Sisear and Canada del Hambre, which is the.place the cattle most resort to, as is known to all the neighbors.” But this translation is evidently inaccurate. Martinez makes no mention of the last sitio. He says the quantity of land may appear too great; but the greater portion is unfit for pasturage. The best part is on the side of the Sis-ear and Cañada del Hambre, etc. The petitioner had already mentioned that his last grant from Arguello had been for three leagues, “which were the Cañada del Pinole and that called ‘Del Hambre,’ on the Straits of Garquinez, and looking toward the Bay of Sonoma, as far as the mouth of the Caña-da Pinole,” as shown by the accompanying map. This same land he again solicits, with the addition of another sitio. On the map, the Cañada del Hambre is distinctly represented, and its name inscribed upon it. That the sitios first granted included that cañada is expressly stated in the petition, and it is also stated that owing to the loss of his document he is obliged to present a new petition for the same place. The excuse assigned for asking for the large quantity of four leagues is that the greater portion is unavailable, the best part being on the side of the Sisear and the Del Hambre. It is plain that he could not have intended to exclude from his application lands embraced in his previous grant, and which he specifies as the best part of the tract solicited in his second application. The grant has been translated as bounding the lands by the Cañada del Pinole, thence eastwardly with the same to the Corral de Galinde, thence to the Caña-da del Hambre, thence to the straits, and thence to the mouth of the Cañada del Pi-nole. But, in fact; the grant does not call for the cañada as a boundary on such terms as would exclude it. The language is, “from that point (i. e. the Corral de Galinde) to the Cañada del Hambre, and through it or along it to the straits,”—precisely the same expression as is used with reference to Cañada del Pinole, which is on all hands admitted to be included in the grant. Looking at the terms of the grant alone, I can see no reason why both cañadas must not be excluded if either be, for both are mentioned as boundaries, and the line is said to run with respect to each, “por ella” or por “la misma.” But even if the intention of the petitioner or that if the governor were doubtful, the document issued on the same day, in which it is ordered that Teodora Soto be informed that her application for the Cañada del Hambre is inadmissible, as that that cañada belongs to Pinole, would seem to be decisive. If, in addition, we consider that on the diseño of Las Juntas the Arroyo del Hambre is distinctly delineated as the boundary between the two ranchos, the lands to the west of it being inscribed “Terreno de Martinez,” together with the fact testified to by all the witnesses that the Arroyo del Hambre was universally recognized as forming the common boundary line of El Pinole and Las Juntas, no doubt can, I think, be entertained, that portion of the Cañada del Hambre lying to the west of the arroyo was included within the exterior limits of the Pinole. It is 'said that if any of the cañada be included all must be, and the adoption of the arroyo as a boundary is purely arbitrary. The cañada in question is a long and narrow valley, not exceeding, in average width, a few hundred yards. Throughout the greater part of its course the Arroyo del Hambre, after entering the cañada, flows along the base of the eastern hills, leaving by far the larger portion of the valley on the west of it. The adoption, therefore, of a well known object like an arroyo as the boundary would be most natural, as it left almost all the cañada to Martinez, and satisfied the call of his grant, which required him to run through it “por ella” to the straits. In the subsequent grant for Las Juntas, the arroyo is expressly designated as the boundary of the latter, and the line so fixed has been recognized and adopted from that day to this. It appears to me, therefore, that the claimants of Pinole have the right to locate four leagues of land at their election, within the exterior limits, as ascertained in this opinion, viz., the Cañada del Pinole, thence along or through it to- the Corral de Galinde thence to the Arroyo del Hambre, thence to the straits, and thence along the báy to the mouth of the Cañada del Pinole. When their election shall have been made, the enquiry will still be open whether they have exercised their right conformably to the rules and principles by which the right of election, in such cases, is governed.

PER CURIAM: Omar Antonio Anehico-Mosquera, through counsel, appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion to modify his sentence based on Amendment 706 to the Sentencing Guidelines. We find no abuse of discretion and AFFIRM. I. BACKGROUND Anchico-Mosquera was sentenced in 1994 to life imprisonment for conspiring to possess crack cocaine with the intent to distribute, in violation of 21 U.S.C. § 846, and possessing crack cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Prior to trial, the government had filed an information and notice pursuant to 21 U.S.C. §§ 841(b)(1)(A) and 851 advising that Anchico-Mosquera was subject to an enhanced mandatory sentence of life imprisonment because the amount of crack cocaine involved exceeded fifty grams and he had at least two prior felony drug convictions. In March 2008, Anchico-Mosquera filed a § 3582(c)(2) motion to modify his sentence based on Amendment 706. The district court concluded that Anchico-Mosquera was not eligible for a sentence reduction because Amendment 706 did not affect his mandatory minimum sentence. On appeal, Anchico-Mosquera argues his life sentence violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because no drug quantity was alleged in the indictment or proven to the jury beyond a reasonable doubt. He also challenges his life sentence based on the government’s allegedly defective § 851 notice of an enhanced penalty. Furthermore, Anchico-Mosquera maintains that the district court erroneously denied his § 3582(e)(2) motion without considering: (1) his rehabilitation efforts and other factors listed in 18 U.S.C. § 3553(a), and (2) the racial disparity in the treatment of crack and powder cocaine offenses discussed in Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). II. DISCUSSION We review the denial of a § 3582(c)(2) motion for abuse of discretion and the district court’s legal interpretations de novo. See United States v. Williams, 549 F.3d 1337, 1338-39 (11th Cir.2008) (per curiam). Pursuant to § 3582(c)(2), a district court may modify a defendant’s sentence that was based on a sentencing range that has been subsequently lowered by the Sentencing Commission. See 18 U.S.C. § 3582(c)(2). Amendment 706 is one such retroactive amendment that reduces the base offense levels in § 2D1.1 for certain crack cocaine offenses. See, Williams, 549 F.3d at 1339. A defendant is not eligible for a sentence reduction under Amendment 706, however, if his sentence was based on something other than his base offense level in § 2D1.1, such as a statutory mandatory minimum. See id. Furthermore, because a sentencing adjustment under § 3582(c)(2) does not constitute a de novo resentencing, the district court must leave intact all original sentencing determinations except for the amended guideline range. See United States v. Moreno, 421 F.3d 1217, 1220 (11th Cir.2005) (per curiam). It is undisputed that Anchico-Mosqu-era’s life sentence was based on the statutory mandatory minimum term required under 21 U.S.C. § 841(b)(1)(A), rather than his base offense level under § 2D1.1. Amendment 706 thus did not lower his applicable guidelines range. Accordingly, the district court correctly denied his § 3582(c)(2) motion on this basis. See Williams, 549 F.3d at 1342 (concluding that Williams was not entitled to a sentence reduction under Amendment 706 because he was subject to a statutory mandatory minimum that replaced his original sentencing guideline range under § 2D1.1). The remainder of Anchieo-Mosquera’s contentions are without merit. First, the district court correctly refused to reduce his sentence based on an alleged Apprendi violation. The plain language of § 3582(c)(2) only permits modifications to a sentence based on guideline amendments by the Sentencing Commission, not Supreme Court decisions. See 18 U.S.C. § 3582(c)(2); see also Moreno, 421 F.3d at 1220 (concluding that “Booker is inapplicable to § 3582(c)(2) motions” because “Booker is a Supreme Court decision, not a retroactively applicable guideline amendment by the Sentencing Commission”). Second, Anchieo-Mosquera’s “arguments regarding the deficiencies in his § 851 information are outside the scope of this proceeding, and we do not address them.” United States v. Fields, 300 Fed.Appx. 774, 777 (11th Cir.2008) (per curiam) (unpublished); see also United States v. Bravo, 203 F.3d 778, 782 (11th Cir.2000) (concluding that § 3582(c)(2) “does not grant to the court jurisdiction to consider extraneous resentencing issues”). Third, because Anchico-Mosquera was ineligible for a reduction under § 3582(c)(2), the district court had no need to consider the 18 U.S.C. § 3553(a) factors in determining whether to modify his sentence. Finally, we may not address the issue of racial disparity in crack cocaine sentences as Kimbrough does not apply to § 3582(c)(2) proceedings. See United States v. Melvin, 556 F.3d 1190, 1193 (11th Cir.2009) (per curiam), cert. denied — U.S. -, 129 S.Ct. 2382, 173 L.Ed.2d 1300 (2009) (concluding that Kimbrough only addressed the crack/powder disparity with respect to original sentencing proceedings as opposed to § 3582(c)(2) proceedings). III. CONCLUSION As Anchico-Mosquera’s mandatory minimum sentence was not affected by Amendment 706, we AFFIRM the district court’s denial of his § 3582(c)(2) motion for a sentence reduction. AFFIRMED.

PER CURIAM: William Scully, Jr., appointed counsel for Leanthony Lee Bettis, filed a motion to withdraw on appeal, supported by a brief prepared pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record reveals that counsel’s assessment of the relative merit of the appeal is correct. Because independent examination of the entire record reveals no arguable issue of merit, counsel’s motion to withdraw is GRANTED, and Bettis’s convictions and sentences are AFFIRMED.

MEMORANDUM Appellant Anthony Cataldo appeals the district court’s denial of his motion to set aside or vacate judgment under Federal Rule of Civil Procedure 60(b)(4). According to Cataldo, the district court lacked personal jurisdiction over him because Ap-pellee Writers Guild of America, West, Inc. failed to serve him in compliance with the parties’ contract. The Writers Guild served Cataldo in accordance with federal and state civil procedure. See Fed.R.Civ.P. 4; Cal.Civ.Proc. Code § 415.20. Even if the parties’ contract called for an additional method of service, the Writers Guild’s failure to serve Cataldo using this additional method is a contract issue that did not deprive the district court of personal jurisdiction over Cataldo. See The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 12, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972) (“No one seriously contends in this case that the forum selection clause ‘ousted’ the District Court of jurisdiction .... ”). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

OPINION PER CURIAM. Appellant Lafayette Brown appeals from a District Court order dismissing his complaint pursuant to 28 U.S.C. § 1915(e). Because Brown’s appeal does not present a substantial question, we will summarily affirm the judgment of the District Court. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6. Brown, proceeding pro se, initiated a civil rights action against the City of Pittsburgh. Brown apparently suffered multiple serious injuries as a result of an accident that took place in 1977. Although his allegations are unclear, Brown appears to argue that the City, Brown’s former employer, violated Brown’s civil rights by interfering with Brown’s ability to recover the full amount of workers’ compensation benefits to which he believes he is entitled as a result of the accident. The District Court referred the matter to a Magistrate Judge, who granted Brown permission to proceed in forma pauperis. The Magistrate Judge also filed a Report and Recommendation recommending that Brown’s complaint be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The Magistrate Judge stated that she was unable to identify any basis for federal jurisdiction. She concluded that, to the extent Brown was attempting to contest the state court judgment concerning his workers’ compensation benefits, the District Court lacked subject matter jurisdiction over the complaint under the Rooker-Feldman doctrine. Brown objected to the Report and Recommendation. On September 15, 2008, after conducting a de novo review, the District Court adopted the Magistrate Judge’s Report and Recommendation and dismissed the Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Brown filed a timely appeal. We exercise plenary review over the District Court’s dismissal under § 1915(e)(2)(B). See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.2000). Upon review, we conclude that the District Court properly dismissed Brown’s complaint. Brown alleges that the City of Pittsburgh has been “lobbying” and “collaborating” with various individuals since 1977, and asserts that he therefore is receiving less than what he believes to be the appropriate amount of workers’ compensation benefits. To the extent that Brown is attempting to argue that the state courts wrongly decided his workers’ compensation claim, we agree with the Magistrate Judge’s conclusion that Brown’s claims are barred by the Rooker-Feldman doctrine. The Rooker-Feldman doctrine divests federal courts of jurisdiction where a federal action “would be the equivalent of an appellate review” of a state court judgment. FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834, 840 (3d Cir.1996). However, the Rooker-Feldman doctrine applies only where “the losing party in state court filed suit in federal court after the state proceedings ended, complaining of an injury caused by the state-court judgment and seeking review and rejection of that judgment.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 291, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). It is not clear to us whether Brown’s claims are limited to the issues addressed by the state court in his workers’ compensation action. For example, Brown also alleges that the City has “blocked” him from receiving medical care and “rescind[ed]” his “true medical records.” To the extent he attempts to raise independent federal claims against the City for injuries separate from those related to the workers’ compensation decision, we conclude that Rooker-Feldman does not apply. However, as to those allegations, Brown has failed to state a claim entitling him to relief. To proceed under 42 U.S.C. § 1983, “a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Even construing Brown’s pro se complaint liberally, Alston v. Parker, 363 F.3d 229, 234 (3d Cir.2004), Brown’s allegations are inadequate to state a § 1983 claim against the City. Although Brown cites to the First and Fourteenth Amendments, Brown fails to set forth any facts supporting a constitutional deprivation. His vague allegations do not provide “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). Brown failed to state a claim on which relief may be granted, and the District Court properly dismissed his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Brown’s appeal does not present a substantial question. We will therefore summarily affirm the judgment of the District Court. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6. . The doctrine takes its name from two United States Supreme Court cases: Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923) and D.C. Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). . In addition, it appears that Brown’s § 1983 claims, which are largely based upon events taking place in the 1970s and 1980s, are barred by the applicable two-year statute of limitations. See 42 Pa.C.S. § 5524; Wilson v. Garcia, 471 U.S. 261, 266-267, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985).

PER CURIAM: Joseph Andrew Davis, a federal prisoner, appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C. § 2241 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Davis v. Pettiford, No. 0:07-cv-01670-TLW, 2008 WL 2928188 (D.S.C. July 23, 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.

PER CURIAM: Christopher Allen Todd appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2000) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s order. Todd v. Knowlin, No. 9:07-cv-03990-GRA, 2008 WL 4817004 (D.S.C. Nov. 3, 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.

JUDGMENT PER CURIAM. This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by the appellant. See Fed. RApp. P. 34(a)(2); D.C. Cir. Rule 34(j). It is ORDERED AND ADJUDGED that the district court’s order filed December 2, 2008, 2008 WL 5085613, be affirmed. The district court properly dismissed the complaint without prejudice for lack of subject matter jurisdiction because it is not a civil action arising under federal law, see 28 U.S.C. § 1331, or between citizens of different states with an amount in controversy of more than $75,000, see 28 U.S.C. § 1332. Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C. Cir. Rule 41.

PER CURIAM: Michael R. Ray appeals the district court’s orders denying his motions to amend his restitution order and for reconsideration of the district court’s denial of his motion to amend his restitution order. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s orders. United States v. Ray, No. 4:02-cr-00687-TLW-1 (D.S.C. Apr. 22, 2008; Nov. 7, 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.

THE COURT théreupon charged the jury that distressed American seamen, who are sent home, are bound by law to render what assistance they can in the ship’s service, while on their passage, and this, although their passage is paid by the United States. That in the present case, the order of the mate appeared to have been a proper one, and the mate had the right to call on the prisoner to do duty on shipboard, unless the captain had ordered to the contrary. That in case the prisoner refused to do duty, the officer had the right to remove or send him aft in a mild manner. That the pushing in this case did not appear to have gone beyond the line of duty on the part of the mate. The court said that they would not undertake to lay down any definite rule how near the parties must be to each other, to enable one of them to commit an assault upon the other, within the meaning of the act of congress; and with a dangerous weapon, no battery need be proved to have been committed; the assault alone was sufficient; that if the parties stood 20 feet apart, the prisoner could not have been guilty of an assault in this case, but had he held a loaded pistol or gun, and pointed it at the mate in a threatening attitude and manner, he would have been guilty of an assault within the act, even had the parties stood at a great distance, so long as the distance was such that execution or harm might arise to the mate from the discharge of the fire-arms. He said that, in the present case, the mate had sworn that the prisoner was three or four feet from him; that is, he had shoved the man forward three or four feet when he took him by the collar. The prisoner had committed no battery upon the mate, but if the prisoner was so near the mate as to have been able to have inflicted a blow upon the mate with his knife, had he so intended by extending his arm the length of it, he was clearly guilty in law of the assault, and ought to be convicted; but should the jury be of the opinion, that the prisoner stood at such a distance from the mate when he drew his knife and flourished it, that he could not have possibly reached him, the prisoner was not guilty in law of the offence charged in the indictment. The jury thereupon retired, and returned a verdict of not guilty.

HOFFMAN, District Judge. The claim in this case was unanimously confirmed by the late board of commissioners. It has been submitted to this court on the proofs taken before the board, and without argument on the part of the appellants, or the statement of any objection to its validity. On reference to the opinion of the board, we find but two questions discussed, and which, it is presumed, were the only points made on the part of the United States. The first relates to the location of the grant. The board, after an elaborate and thorough examination of the testimony, arrived at the conclusion that the calls in the grant and the delineation of the tract on the diseño are abundantly sufficient to enable a surveyor to locate the grant. On examining the transcript, this opinion of the board seems fully sustained by the proofs, and the doubts or difficulties felt by some of the witnesses as to the proper location of the land seems to have originated in a misconception of the true meaning of some of the calls in the grant. The grantee is shown to have occupied his land from a period anterior to his grant; to have lived there with his wife and children, and to have made considerable improvements. To the discussion of the second and more important question, whether Roberts, the original grantee, being an Indian, had a right to receive grants of land under the Mexican laws, and to convey the land so granted, the board devote a large portion1 of their opinion. But that question has been settled, in the supreme court in accordance with the views expressed- by the board, and is no longer open for argument in this court The genuineness of the original documents is not questioned, and the title of the present claimant appears to have been regularly derived from the original grantee and his heirs, and to have been accompanied by possession. A decree affirming the decision of the board must therefore be entered.

PER CURIAM: Robert Owens appeals pro se the denial of his motion to reduce his sentence. 18 U.S.C. § 3582(e)(2). Owens moved to reduce his sentence based on Amendments 433 and 599 to the Guidelines. We affirm. We review a denial of a motion to reduce a sentence under section 3582(c)(2) for abuse of discretion. United States v. Brown, 332 F.3d 1341, 1343 (11th Cir.2003). A district court may modify a sentence under section 3582(c)(2) for a defendant who was sentenced to a term of imprisonment based upon a sentencing range that has subsequently been lowered by the Sentencing Commission. Amendment 433 became effective November 1, 1991. U.S.S.GApp. C, amend. 433. Amendment 599 became effective November 1, 2000. U.S.S.G.App. C, amend. 599. Owens was sentenced in 2004. The district court did not abuse its discretion when it denied Owens’s motion to reduce his sentence because Amendments 433 and 599 were in effect when he was originally sentenced. Owens’s term of imprisonment was not based on a sentencing range that was later lowered by the Sentencing Commission. See U.S.S.G.App. C, amend. 433, 599; 18 U.S.C. § 3582(c)(2). We affirm the denial of Owens’s motion to reduce his sentence. AFFIRMED.

PER CURIAM: Dr. Jordan Yee filed this employment discrimination case against the Clinical Di rector of the Bureau of Prisons’s Federal Medical Center Carswell (“FMC Cars-well”) and the United States Attorney General. He alleged discrimination due to his race, his national origin, and his disability. Relief was sought under Title VII of the Civil Rights Act of 1964 and the Rehabilitation Act of 1978. The district court granted summary judgment in favor of the defendants. We AFFIRM. Yee was employed as a psychiatrist at FMC Carswell at all times relevant to this case. Yee asserts that he was discriminated against on account of his race and national origin (Chinese) when (1) he was sent a letter of reprimand in October 1997 citing him for inattention to duty and explaining that any future misconduct would lead to disciplinary action, and (2) the FMC Carswell policy requiring psychiatrists to keep their doors open when not meeting with patients or discussing confidential information was enforced against him but not against one of his white colleagues. Yee further maintains that he was discriminated against on account of his disability (chronic hepatitis) when he was denied part-time work as a reasonable accommodation. In granting summary judgment in favor of the defendants, the district court found that Yee failed timely to exhaust his administrative remedies with respect to his claims because he did not consult with a employment discrimination counselor within forty-five days of the alleged acts. The court further concluded that Yee failed to establish a prima facie case of discrimination based on race or national origin. That was because there was no evidence that the alleged discriminatory acts constituted an adverse employment action or that a similarly situated employee outside of the protected class was treated more favorably. Finally, the court decided that Yee had not set forth a prima fade case of disability discrimination because there was no evidence that Yee had requested and been denied a reasonable accommodation. We review a district court’s summary judgment ruling de novo, applying the same standard as the district court. EEOC v. Agro Distribution, LLC, 555 F.3d 462, 469 (5th Cir.2009). Summary judgment is proper when the “pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). “On review of a grant of summary judgment, all facts and inferences must be construed in the light most favorable to the non-movant.” Agro Distribution, 555 F.3d at 462 (citation omitted). As an initial matter, Yee objects to a number of alleged procedural errors by the district court that he submits support reversal in this case. First, he contends that the defendants filed a motion to strike the documents that supported his response to the summary judgment motion without complying with a local rule. The local rule required a moving party to confer with opposing counsel before filing a motion to determine whether the motion is opposed. A certificate was to be submitted that stated the results of the conference. Yee argues that the reason for the defendants’ failure to include the required certificate was to make the district court assume that Yee did not oppose the motion to strike. Yee further suggests that the district court overlooked the missing certificate and did not consider the documents in support of his response to the motion for summary judgment. However, the district court did not ignore the documents submitted in support of Yee’s summary judgment response. Rather, the court stated that it would not rule on the motion to strike and would instead give the documents in Yee’s response “only such weight as they deserve.” We resolve the issue on the basis that Yee did not present it to the district court. Because “arguments not raised before the district court are waived and cannot be raised for the first time on appeal,” we decline to address the issue. See LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 387 (5th Cir.2007). Yee next argues that the defendants’ reply brief in support of their summary judgment motion was five days late. Further, no leave of court or an extension of time was granted. Yee contends that the district court improperly ruled on the summary judgment motion without striking this untimely reply. Additionally, Yee argues that although the district court entered an order compelling the defendants to respond to a number of discovery requests, the district court improperly granted summary judgment before the deadline it gave the defendants for providing such discovery. Thus, he did not have an opportunity to review and rely on the discovery materials as a part of his response to the summary judgment motion. Again, these arguments were not raised before the district court and have been waived on appeal. Id. We note, though, that motions deadlines such as these are not rigid, and the district court has broad discretion to control its own docket and extend filing deadlines. Marinechance Shipping, Ltd. v. Sebastian, 143 F.3d 216, 218 (5th Cir.1998); Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 367 (5th Cir.1995). Shifting to the merits of the summary judgment ruling, the district court found that Yee failed to exhaust his administrative remedies regarding his discrimination complaints. Exhaustion of available remedies is required “before a federal employee may bring an employment-discrimination suit in federal court....” Hampton v. IRS, 913 F.2d 180, 182 (5th Cir.1990). As an initial step in the exhaustion process, the employee must “initiate contact with [an EEO] Counselor within 45 days of the date of the matter alleged to be dis-criminatory____” 29 C.F.R. § 1614.105(a)(1). “Failure to notify the EEO counselor in [a] timely fashion may bar” the employee’s claim. Pacheco v. Rice, 966 F.2d 904, 905 (5th Cir.1992). Yee did not timely consult with an EEO counselor, and the court found that the defendants did not do anything that would bar them from asserting failure to exhaust as an affirmative defense. The exhaustion requirement is not jurisdictional, however, and is subject to the traditional equitable defenses of waiver, estoppel, and equitable tolling. Id. at 906. If informal counseling is not timely sought, “the plaintiff has the burden of demonstrating a factual basis to toll the period.” Blumberg v. HCA Mgmt. Co., 848 F.2d 642, 644 (5th Cir.1988). Yee asserts that the district court erred in concluding that he did not timely consult with an EEO counselor regarding an October 14, 1997 letter of reprimand. Yee contends that he did not receive the letter until sometime after Christmas Day 1997. After receiving the letter, he gave his union president, Torii Dawdy, a request for informal EEO counseling and asked Daw-dy to put the letter in EEO counselor John Hartford’s mailbox. Yee further maintains that Hartford was on extended leave when the request was placed in his box and that upon his return to work, he forwarded the request for processing on February 26, 1998. Yee submits that the defendants should not be able to rely on failure to exhaust as an affirmative defense because their actions prevented him from complying with the forty-five-day requirement. Yee’s arguments are claims of equitable estoppel or equitable tolling as a basis for excusing his failure timely to contact an EEO counselor after receiving the letter of reprimand. However, Yee has not offered any competent summary judgment evidence to support the application of such doctrines in this case. As support for his contention that he did not receive the letter dated October 14 until sometime after Christmas, Yee relies on a photocopy of an envelope addressed to him from FMC Carswell. It contains someone’s handwritten notation that it was mailed on October 14, 1997. We assume that the defendants provided this photocopy to Yee in discovery. Yee theorizes that because no postage was on the envelope when it was copied, it must have been mailed without any. Yee then speculates that the letter would have been returned to FMC Carswell and mailed again with postage. Those steps would have caused delays. Yee also relies on a copy of his discrimination complaint, which states that he first contacted John Hartford by letter on February 26, 1998, as support for his theory that his request for counseling was placed in Hartford’s mailbox while Hartford was on extended leave and was received when Hartford returned to work around February 26,1998. There is not any usable evidence in the theories woven from the copy of a postage-free envelope and the complaint that Yee filed. Yee had to present facts to support tolling the period for informal EEO counseling or to excuse his failure to exhaust his administrative remedies in timely fashion. See Blumberg, 848 F.2d at 644. Summary judgment may be granted when “the nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation.” Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990) (phrase quoted in Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 332 (5th Cir.2004)). Yee has rested only upon that here. Yee next contends that the district court erred in finding that he failed to establish a prima facie case of disparate treatment. Yee asserts that the policy requiring psychiatrists to keep their doors open when not meeting with patients or discussing confidential information was enforced against him but not against one of his white colleagues, Dr. Lucking. To make a prima facie case that he suffered discrimination due to his race or national origin, Yee had to show that he was “(1) a member of a protected class; (2) qualified for the position held; (3) subject to an adverse employment action; and (4) treated differently from others similarly situated.” Abarca v. Metro. Transit Auth., 404 F.3d 938, 941 (5th Cir.2005). The district court concluded that Yee had established neither the third nor the fourth element of a prima facie case. Yee argues that the October 14, 1997 reprimand letter satisfies the adverse employment action requirement because it was later used as a basis to deny him part-time employment. However, as discussed above, Yee did not ex haust his administrative remedies regarding the letter. Therefore, it may not be used as a basis for his discrimination claim. Accordingly, Yee has failed to establish a pyima facie case of discrimination based on disparate treatment. Finally, Yee maintains that the district court erred in concluding that he failed to establish a pyima facie case of discrimination arising from a disability. Yee contends that such discrimination occurred when he was denied part-time employment as a reasonable accommodation for limitations created by his disability. The defendants argue, however, that an accommodation of part-time work was not properly before the court. Rather, the only issue relating to a disability was whether discrimination occurred when Yee was denied immediate sick leave as an accommodation during the August 1997 incident. Yee disagrees and argues that the part-time work issue was raised in his original complaint. We find no such claim. The district court had previously denied Yee’s motion to amend his pleadings to include a part-time accommodation claim. Although Yee may have attempted to add such a claim through an amendment to his complaint, the district court denied Yee leave to amend. Yee has not argued that the district court erred in denying that motion. Even were such an argument before us, it would be relevant that Yee apparently did not exhaust his administrative remedies with respect to the claim. If that is so, amendment would have been futile. Leave to amend properly may be denied on the basis of futility. Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 576 n. 8 (5th Cir.2005). Finding no error, we AFFIRM the district court’s grant of summary judgment in favor of the defendants. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . Yee also alleged the following discriminatory acts before the district court: (1) an August 1997 incident in which Yee was caught reclined in his office with his door closed and was required to report to the associate warden's office; (2) the charging of six hours of sick leave for time he was at work during the August 1997 incident; (3) the failure to provide immediate sick leave as a disability accommodation after the August 1997 incident; and (4) a racially hostile work environment. However, he has expressly abandoned these claims in his reply brief to this court.

KETHLEDGE, Circuit Judge. Defendants Michael Anderson, Frank Kama, and Roni Shaba appeal their sentences for conspiring to possess with intent to distribute methylenedioxymethampheta-mine pills (MDMA), in violation of 21 U.S.C. §§ 841(a)(1) and 846. We affirm. I. Anderson and Kama pled guilty to conspiring to possess with intent to distribute 1,300 pills of MDMA, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The district court calculated their base-offense levels based on the total weight of the pills, pursuant to USSG § 2D1.1, Note B. That calculation ultimately yielded a Guidelines range of 57-71 months for Anderson and 63-78 months for Kama. The district court thereafter sentenced Anderson to 57 months’ imprisonment, and Kama to 48 months’ imprisonment. Shaba pled guilty to involvement in a separate conspiracy, which arose from his sale of 3,100 MDMA pills. The total weight of the pills was unknown, so the district court calculated Shaba’s base-offense level based on the “typical weight” for each pill under § 2D1.1, Note 11. The district court then sentenced him to 51 months’ imprisonment, which was within his Guidelines range of 51-63 months. These consolidated appeals followed. II. We review a district court’s factual findings in sentencing a defendant for clear error, United States v. Hazelwood, 398 F.3d 792, 795 (6th Cir.2005), and its application and interpretation of the Guidelines de novo. United States v. Cousins, 469 F.3d 572, 575 (6th Cir.2006). Defendants contend that, in calculating their base-offense level, the district court should have considered only the weight of the “pure” MDMA itself, rather than the weight of the entire pill. This argument is plainly foreclosed by precedent. “This court has repeatedly rejected the argument that only the ‘pure’ weight of a controlled substance should be used as the basis for calculating a defendant’s base offense level instead of the weight of the entire pill.” United States v. Jeross, 521 F.3d 562, 577 (6th Cir.2008). To the contrary, “a defendant’s base-offense level is to be determined by the entire weight of the pill containing the controlled substance, and not by the weight of the actual controlled substance alone (i.e., the weight of the pure MDA, MDMA, or meth con tained in the pill).” Id. (emphasis in original). The district court’s judgment is affirmed.

MEMORANDUM Ronny Kurniawan Joso and his wife, natives and citizens of Indonesia, petition for review of the Board of Immigration Appeals’ order dismissing their appeal from an immigration judge’s decision denying their application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Kaur v. Ashcroft, 379 F.3d 876, 884 (9th Cir.2004), and we deny the petition for review. The record does not compel the conclusion that changed or extraordinary circumstances excused the untimely filing of Joso’s asylum application. See 8 C.F.R. § 1208.4(a)(4), (5); Ramadan v. Gonzales, 479 F.3d 646, 656-58 (9th Cir.2007) (per curiam). Accordingly, Joso’s asylum claim fails. Substantial evidence supports the agency’s adverse credibility determination because the inconsistency between Joso’s testimony and the medical report concerning the injuries he suffered in May of 1998 and the inconsistency between Joso’s testimony and the police report concerning the date of the attack on his shop go to the heart of his claim. See Goel v. Gonzales, 490 F.3d 735, 739 (9th Cir.2007) (per curiam) (inconsistencies between testimony and documentary evidence support an adverse credibility finding where inconsistencies go to the heart of the claim). Accordingly, Joso’s withholding of removal claim fails. Joso does not raise any substantive arguments in his opening brief regarding the agency’s denial of CAT relief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (“Issues raised in a brief that are not supported by argument are deemed abandoned.”). PETITION FOR REVIEW DENIED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Order Mark Winger filed a complaint under 42 U.S.C. § 1983, contending that officials at his prison violated the Constitution by restricting his opportunity for outdoor exercise for more than a year. A disciplinary infraction (soliciting a murder) led to the revocation of a year’s good-time credits, a year in segregation, and a year’s loss of yard privileges. According to the complaint Winger spent at least 9 consecutive months indoors. After he complained of panic attacks, he was allowed a single hour of outdoor exercise. The district court dismissed the complaint under 28 U.S.C. § 1915A, citing Pearson v. Ramos, 237 F.3d 881 (7th Cir.2001), for the proposition that a year’s denial of yard privileges does not violate the Constitution’s eighth amendment. Pearson reached its conclusion only after a trial, and the court thus was able to evaluate the effects of the limit on yard privileges in the context of the prison’s justifications for the restrictions. We observed along the way that an unjustified, lengthy deprivation of opportunity for out-of-cell exercise “could reasonably be described as cruel and, by reference to the current norms of American prisons, unusual.” 237 F.3d at 884. See also Delaney v. DeTella, 256 F.3d 679, 684 (7th Cir.2001); Antonelli v. Sheahan, 81 F.3d 1422, 1432 (7th Cir.1996). But Pearson’s misconduct justified the restrictions, we concluded. Pearson repeatedly attacked guards, making it understandable that the prison wanted a form of punishment that reduced his opportunity for similarly aggressive behavior: “To confine in ‘solitary’ a prisoner who behaves like a wild beast whenever he is let out of his cell is the least cruel measure that occurs to us for dealing with such a person.” 237 F.3d at 885. Winger equates “lack of yard privileges” with “lack of exercise.” If that is so, then it is difficult to see how even nine months’ deprivation could be deemed consistent with the eighth amendment. Dismissal under § 1915A was therefore inappropriate. Yet perhaps the prison offered Winger an opportunity for adequate indoor exercise, or perhaps there are good penological reasons for the sort of restrictions to which Winger was subjected. See Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). Once the defendants answer the complaint, and the parties have an opportunity to present evidence, these questions may come into focus. We do not hold that Winger is enti-tied to prevail, only that his complaint states the sort of claim that cannot be dismissed out of hand. Because further proceedings are necessary, the district court may wish to reconsider whether it would be appropriate to recruit counsel to assist Winger. See Pruitt v. Mote, 503 F.3d 647 (7th Cir.2007) (en banc). The judgment is vacated, and the case is remanded for further proceedings. In light of this disposition, neither the suit nor the appeal counts as a “strike” under 28 U.S.C. § 1915(g).

MEMORANDUM American Buddha appeals the district court’s grant of summary judgment in favor of the City of Ashland (“the City”) in American Buddha’s lawsuit under 42 U.S.C. § 1983. Because American Buddha’s lawsuit is moot, we dismiss this appeal. See Ctr. for Biological Diversity v. Lohn, 511 F.3d 960, 963 (9th Cir.2007) (“If an event occurs during the pendency of the appeal that renders the case moot, we lack jurisdiction.”). When City employee Richard Holbo disconnected American Buddha’s modem, the City had not adopted a formal policy governing alleged copyright infringement by users of the City’s fiberoptic network (“the Network”). We take judicial notice that the City has now adopted a formal written copyright infringement policy, see United States v. Thornton, 511 F.3d 1221, 1229 n. 5 (9th Cir.2008) (taking judicial notice of a Bureau of Prisons policy statement that was publicly available), which requires the City to comply with the notice and take-down procedures established by the Digital Millennium Copyright Act (“DMCA”), see Ashland Fiber Network Acceptable Use Policy, available at http://www. ashlandfiber.net/acceptable.htm (last visited Mar. 5, 2009) (“[The Network] will follow the procedures provided in the DMCA, which prescribe a notice and takedown procedure, subject to the webmasters [sic] right to submit a Counter-notification claiming lawful use of the disabled works.”). The City’s formal written policy differs substantially from the informal practice Holbo allegedly followed in disconnecting American Buddha’s modem. The informal practice required Holbo to terminate American Buddha’s modem service (which disabled access to all material on American Buddha’s web sites) upon receipt of a single allegation of infringement, rather than disabling access only to the allegedly infringing image. In contrast, the current formal policy authorizes City employees to disable access only to allegedly infringing material (i.e., not terminate service altogether) in response to a single allegation of infringement. See Ashland Fiber Network Acceptable Use Policy (providing “[the Network] will respond expeditiously [to infringement notices] by removing, or disabling access to, the material that is claimed to be infringing” (emphasis added)). Un der this policy, the City could terminate American Buddha’s service only if the City establishes American Buddha violated the City’s copyright infringement policy or was a repeat infringer. See id. (explaining that customers who violate the DMCA policy “will be subject to immediate termination” and that “repeat infringers will not be tolerated”). Although a case generally should not be considered moot when the defendant voluntarily ceases the allegedly illegal conduct in response to a lawsuit, here “there is no reasonable expectation that the illegal action will recur.” Native Vill. of Noatak v. Blatchford, 38 F.3d 1505, 1510 (9th Cir.1994). The informal practice, which authorized the allegedly illegal conduct by the City employee, has been superseded by the formal policy. Moreover, the City is highly unlikely to revert to the informal practice, because compliance with the formal policy insulates the City from liability from lawsuits by copyright holders, which it did not enjoy under the informal practice. See Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1109 (9th Cir.) (explaining a service provider is not eligible for “any of the four DMCA safe harbors at [17 U.S.C.] §§ 512(a)-(d)” unless it adopts, reasonably implements and informs users of a policy that provides for the termination of service for “users who repeatedly or blatantly infringe copyright”), cert. denied, — U.S. -, 128 S.Ct. 709, 169 L.Ed.2d 553 (2007). Because American Buddha seeks only prospective injunctive relief preventing the City from following the now superseded informal practice, its claim is moot. See Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007) (“A claim is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome. The basic question is whether there exists a present controversy as to which effective relief can be granted.” (internal quotation marks omitted)). DISMISSED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

PER CURIAM: Jayson Brent Dickinson, Texas prisoner # 1491494, appeals the dismissal of his 42 U.S.C. § 1983 complaint for failure to state a claim pursuant to 28 U.S.C. § 1915A. Dickinson argues that being denied access to a law library violated his constitutional rights and that having appointed counsel did not provide him with adequate access to the law. He argues that he was misrepresented by counsel and that without access to a law library, he could not prevent this misrepresentation. He argues that he had a right to investigate the law on his own behalf while he had charges pending against him. We review the dismissal de novo. See Ruiz v. United States, 160 F.3d 273, 275 (5th Cir.1998). “[T]he fundamental constitutional right of access to the courts requires prison authorities to assist inrriates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977) (emphasis added). Because Dickinson had court-appointed counsel to represent him, he did not have a constitutional right of access to a law library to prepare his criminal defense. See Degrate v. Godwin, 84 F.3d 768, 769 (5th Cir.1996). Accordingly, the district court did not err in dismissing his complaint for failure to state a claim. Dickinson’s appeal is without arguable merit and is frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.1983). Because the appeal is frivolous, it is dismissed. See 5th Cir. R. 42.2. The dismissal of this appeal as frivolous and the district court’s dismissal for failure to state a claim each count as a strike for purposes of 28 U.S.C. § 1915(g). See Ade-pegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.1996). We caution Dickinson that once he accumulates three strikes, he may not proceed in forma pauperis in any civil action or appeal filed while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury. See § 1915(g). APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

PER CURIAM: Derrick Edward Brown appeals the district court’s order denying his 18 U.S.C. § 3582(c)(2) (2006) motion for reduction of his sentence. We have reviewed the record and find no reversible error. See United States v. Dunphy, 551 F.3d 247 (4th Cir.2009); United States v. Hood, 556 F.3d 226 (4th Cir.2009). Accordingly, we affirm for the reasons set forth by the district court. United States v. Brown, No. 1:03-cr-00534-CMH-1 (E.D.Va. Apr. 11, 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.

PER CURIAM: The attorney appointed to represent Nahum Antonio Arevalo has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Arevalo has filed a response. Our independent review of the record, counsel’s brief, and Arevalo’s response discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

WOODS, Circuit Judge. The pleas in abatement are based on section 812 of the Revised Statutes, which declares: “No person shall be summoned as a juror in any circuit or district court more than once in two years, and it shall be sufficient cause of challenge to any juror called to be sworn in any cause that he has been summoned and attended said court as a juror at any term of said court held within two years prior to the time of said challenge.” One plea alleges, in substance, that P. E. Bechtel was summoned as a juror at the November term. 1876, of this court, and was impaneled and sworn as a grand juror on December 11, 1876, and continued to serve as such grand juror until April 27, 1877; and that the same P. E. Bechtel was summoned as a juror at the November term, 1878, of this court, and was impaneled and sworn as a grand juror on December 14, 1878, and continued to serve as said grand juror until March 1, 1S79, and until the indictment in this case was found and returned, and was of the panel by which said indictment was found and returned. The other plea alleges that J. B. Glandin was summoned to serve as a juror in this court for the November term, 1S77, and was sworn and impaneled as a petit juror in November, 1S77, and served as such until January 22, 1878, and that said Glandin was summoned as a juror for the November term, 1878, of this court, and on December 14, 187S, was impaneled and sworn as a grand juror in this court, and continued to serve as such up to March 1, 1S79, and was of the panel by which said indictment was found. To these pleas the United States attorney has filed a demurrer on the ground that the same were bad in law. As to the first plea, it is obvious to remark that the facts stated do not bring it within the terms of the section on which it is predicated. It does not appear from this plea that Bechtel was summoned “more than once in two years,” nor does it appear that the juror has been summoned and attended said court as a juror at any term of said court held within two years prior to the time of said challenge. It does not appear from the plea precisely when the juror named was summoned, but it is stated that, in the first instance, he was summoned to the November term, 1876, and in the second to the November term, 1878. The period of two full years had elapsed between the beginnings of these two terms. According to the plea under consideration, the juror was impaneled and sworn on the grand jury on December 11, 1876, and was not again impaneled and sworn until December 14, 1878, a period of more than two years. Even supposing he had been chai- lenged on the day he was sworn, the challenge would have been ineffectual, for the juror had not been summoned and attended as a juror within two years, for at least a part of the term at which he last attended was held more than two years previously. I do not think that the fair construction of this section is that twenty-four months must elapse between the close of the term at which a juror is summoned and serves and the beginning of the next term at which he is competent to serve. In this district this construction would render a juror incompetent for nearly two years and six months, for the November term of the court invariably lasts until the third Monday of April following. But the law in effect is, that he may be summoned as often as once in two years. It cannot be that the law allows a juror to be summoned as often as once in two years and at the same time forbids him to serve oftener than once in two years and six months. The juror named in this plea has not been summoned oftener than that. This has, so far as I know, been invariably the construction put in this circuit upon the section under consideration. This plea is, therefore, bad. because the case of the juror named therein does not fall within the terms of section 812. So far as the lapse of time is concerned, the second plea is not open to this objection. The grand juror named in this plea served on the grand jury by which the bill was found and also served on the grand jury impaneled m November, 1877. As the defendants have not before now had an opportunity to object to the composition of the grand jury by which they were indicted, they may take advantage of any disqualification of any of the grand jurors by plea in abatement: U. S. v. Hammond [Case No. 15,-294], and cases there cited. The question is, therefore, squarely presented whether the facts set out in this plea render the indictment bad and liable to be quashed. That depends on whether section 812 imposes a disqualification to serve as grand jurors upon persons who fall within its terms. It seems doubtful whether section 812 applies at all to grand jurors, especially the second clause of the section, which declares: ■“It shall be sufficient cause of challenge to any juror called to be sworn in any cause, that he has been summoned and attended said court as a juror, at any term of said court held within two years prior to the time of said challenge.” Grand jurors are not called to be sworn in any cause. They are sworn to investigate offenses against the criminal law generally, and causes which they institute where there has been no previous arrest are not in existence until their duty in reference thereto is fully completed and ended. The clause just quoted would not, therefore, seem to apply to them. It appears rather to be aimed at jurors taken de talibus circumstantibus—persons not regularly summoned as jurors, but called in as talesmen from the by-standers. But, conceding that the entire section applies to grand as well as petit jurors, the question is, does the section impose such a disqualification on a grand juror as would render an indictment found by a jury of which he was a member bad? It is easy to perceive that it was the object of congress, by the enactment of section 812, to secure the selection of jurors who were from the body of the district, and they should not be professionally or habitually called into the courts of the United States. To effectuate this object they made two provisions, the first of which is a direction to those who select the array that they shall not summon any person who has been summoned within two years; and, second, that if, through ignorance of the facts any person should be twice summoned within two years, and should have attended within that period he might, when called to be sworn in any cause, be challenged. Congress has not seen fit to impose any consequence of invalidity upon verdicts, either by direct language or by necessary implication, when jurors were not challenged for this cause, who might have been. The language of this section is guarded with great precision, and is in marked contrast with that of section 820. There is a distinction to be observed between a positive disqualification and a cause of challenge. Thus section 820 declares certain acts done by a person summoned as a juror to be a cause of disqualification and challenge. The use of the word “disqualification” has some purpose, and implies that there may be causes of challenge which are not positive disqualifications. In U. S. v. Hammond [supra] I have held that section 820, by its very terms, rendered a juror disqualified, and thereby necessarily invalidated the finding of the jury in cases where there could be no waiver. But the language of the section now under consideration leaves the juror competent, not disqualified, though liable to challenge when called to be sworn, as manifestly as section 820 affects him with absolute disqualification. In Munroe v. Brigham, 19 Pick. 368, Chief Justice Shaw makes this distinction, and held in effect that the' fact that a juror was over the age of sixty-five years, which, by the law of Massachusetts, was not only a ground of exemption from jury duty,, but ■also a ground of challenge by either party to the suit, did not absolutely disqualify the juror from sitting in the ease, or furnish ground for setting aside the verdict returned • by the jury of which he was a member. I think the distinction rests on solid grounds. Pleas in abatement being dilatory are not favored. O’Connell v. Reg., 11 Clark & F. 155; Com. v. Thompson, 4 Leigh, 667; State v. Newer, 7 Blackf. 307. In the case of People v. Jewett, 3 Wend. 321, the defendant and one Burrage Smith were indicted for having, with others, conspired without legal authority or justifiable cause to carry off and transport one William Morgan to a place unknown. Objection was taken to the indictment that one Benjamin Wood, one of the grand jurors, had, before the finding of the bill of indictment, in repeated conversations declared that the defendant was concerned in the abduction of Morgan, aided in carrying him off, was guilty thereof, and ought to be punished therefor; and it was alleged that the defendant had not been apprised of any criminal proceeding against him, not having been arrested or required to enter into recognizance. In reply to this objection, Savage, C. J., said: “The books are silent on the subject of such exception after indictment found, and in the absence of authority I am inclined to say, in consideration of the inconvenience and delay which would ensue in the administration of criminal justice were a challenge to a grand juror permitted to be made after he was sworn and impaneled, that the objection comes too late.” In the same case Marcy, J., said: “As the defendant was not recognized to appear at the sessions when the indictment was found, he did not know that any charge would be laid before the grand jury against him, and consequently he had no opportunity to object to the jurors before they were sworn and had presented their indictment. * * * Though I feel the force of the argument, that the defendant should be allowed the benefit of an exception to a partial grand juror, I cannot turn my view from the consideration of the great delays and embarrassments which would attend the administration of criminal justice if it was to be obtained in the way now proposed. No authority for adopting this course was shown on the argument, and I have not since been able to find any.” And in Munroe v. Brigham, supra, Chief Justice Shaw remarks: “Upon general grounds, unless presumptively required by statute, it would be inconsistent with the purposes of justice to allow such an exception to a juror. * * * Where no other incapacity exists, and no injustice is done, nothing but a positive rule of law would seem to require that a verdict should, on that account be set aside.” This authority is cited merely to show how reluctant the courts are to interfere with the indictments of a grand jury by reason of the unfitness of one or more of the grand jurors. Nevertheless, courts will interfere where there has been a positive disqualification imposed by statute. But as, in my judgment, the fact that the juror has served within two years as a juror in the court is not made by section ST2 a positive disqualification, but only a ground of challenge. I do not think that it can be urged as a reason for quashing the indictment. Demurrer to pleas in abatement sustained.

HOFFMAN, District Judge. In this case a decree was entered at a former term by consent of the United States, confirming the claim. In the decree of the board the land was described as of the extent of two leagues, a little more or less, and the boundaries as contained in the grant were mentioned. In the decree of this court the boundaries set forth were those which are mentioned in the original decree of concession as well as in the titulo or final title, and the limitation of quantity was omitted. The cause was appealed and at a subsequent day, pursuant to instructions, the district attorney entered into a stipulation consenting that an order be entered vacating the order granting an appeal, and giving leave to the claimant to proceed under the decree of this court as under final decree. It was afterwards brought to the notice of the district attorney that the land contained within the boundaries mentioned in the decree is of the extent of about five leagues. A motion was therefore made to amend the decree by limiting the extent of land to the quantity mentioned in the grant. In support of this motion it was shown by affidavit that the land was five leagues in extent, and the counsel for the claimant admitted in court that its area was about nineteen thousand acres, -which would be something more than four leagues. It is quite clear that under no ruling of this court, or the supreme court, in this class of cases, can a claimant be entitled to a confirmation of a tract four or five leagues in extent, under a grant which designates the quantity as two leagues, a little more or less. If in any case it could be held that the governor intended to grant the large tract, notwithstanding the limitation of quantity mentioned in the grant, it could only be where it appears that he knew the quantity contained within the boundaries; that the boundaries are distinct and well defined, and that he granted all the land within them. But in this case only three boundaries are mentioned in the grant. The names of a rancho (San Antonio) and of two places (“parages”), viz: El Hombre and Monte del Diabolo, are given, to which the land granted is said to be contiguous (“colindante”). In the map which is found in the expediente, and to which the grant refers, the tract is delineated, and at the foot of it is a note signed with the rubric of one Zamorano, in which it is stated that the land “from north to south is a little more than two leagues, and from east to west a little less than one league.” It was under these representations that the governor described the land as of the extent of two leagues, a little more or less, as shown by the map, and reserved the surplus to the nation. It was also testified by José Maria Amador, a witness produced by the claimant, that the distance between the two streams of Las Juntas and the San Ramon, from north to south, is a little more than two leagues, and the distance from east to west in some places two miles, in others a little less than one league. So far, therefore, as the record disclosed the facts, it appeared that the extent of land embraced within the boundaries was about two leagues. It had previously been held by this court that, where all the boundaries of a grant were clearly defined, and where the conditions specified the extent as of a certain number of leagues, a “little more or less, as shown by the map,” the whole land included within the boundaries should be deemed to pass by the grant, provided that the quantity over and above that specified did not exceed a fractional part of the usual unit of measurement, viz: one league, it being supposed that such excess might reasonably be considered to be covered by the words “more or less.” It had also been held that for the purpose of ascertaining the boundaries resource was to be had not to the grant alone, but also to the petition, diseño, and to inquiries whether the name of the rancho indicated a place of known limits and extent. But in the case of U. S. v. Fossatt [20 How. (61 U. S.) 427], this view was held to be erroneous. The words “more or less” were rejected as having no place in our system of survey and location, and the grantee was restricted to the quantity clearly expressed. The grant in that case as in this, mentioned only three boundaries, but the court refused to refer to the petition, or diseño, to ascertain the fourth boundary, or to inquire if the name of the place granted “had any significance as connected with the limits of the tract.” It is clear, therefore, that if the quantity of land exceeded two leagues (the quantity clearly expressed) by only a fraction of a league, the claimant would, under the decision of the supreme court, be limited to the precise quantity of two leagues; a portion must be so limited when the excess is from two to three leagues. If, then, this court has not lost jurisdiction over the cause, it is clearly its duty to reform the decree by designating the quantity of land confirmed. It is objected that this is a consent decree, and therefore cannot be reopened or appealed from. With regard to the first consent, given by the district attorney, it is sufficient to say that it was merely a consent to a confirmation of the claim, and to an affirmance of the decision of the board. It cannot, in any case, be called a consent to the decree made by this court. With regard to the second consent, there is more difficulty. That consent was in the usual terms of the stipulation filed by that officer whenever instructed to dismiss an appeal to the supreme court. He consents that the order granting the appeal be vacated, and that an order be entered allowing the claimant to proceed under the decree of this court, as under final decree. It will be observed—First: That this stipulation does not in terms purport to be a consent that a certain decree shall be made, but it consents that an appeal shall be dismissed, and that a decree previously made shall be regarded as final. If, then, that decree is to be considered a consent decree, it cannot be because it was made on a previous consent, but because a subsequent assent to its finality has given it that character. Second: It appears that that consent, whatever be its effect, was given not only in ignorance of the facts, but on a misconception of them, occasioned by the misrepresentations as to the extent of the land contained in the note upon the diseño furnished by the grantee, and the testimony of Amador, a witness produced by the claimant. As the court sees that this decree will, if suffered to stand, give to the claimant more than double the quantity of land which he solicited from the governor, and to which he is by the law, as declared by the supreme court, entitled, it seems to me that the technical objection which has been noticed ought not to be permitted to prevent the correction of the mistake, both as to the law and the fact, into which this court fell. But even if in an ordinary case, where the final decree of this court is exhaustive of its power, such a mistake could not, under these circumstances, be corrected, there can be no doubt that in the special class of cases, of which this is one, this court' possesses such authority. In the recent decision of the supreme court in the case of U. S. v. Fossatt, 21 How. [62 U. S.] 450, it is declared that this power of the district court over the cause does not terminate until the issue of a patent con-formably with its decree. As that case was remanded, because the decree entered by this court was not a just decree, it was argued with much force that all decrees of this court were to be regarded as interlocutory until a final decree, embodying and adopting a survey was entered. It was held, however, by this court, that the decrees heretofore entered, by which the validity of the claim was ascertained, were to be regarded as final decrees in a sense to authorize a survey, as of lands “finally confirmed,” to be made, or an appeal to be taken from them. But it was also held that such decrees did not exhaust the power of the court over the cause, and that it had authority to hear objections to the survey and location which might be made, and to direct the surveyor to correct or modify the survey, conformably to its opinion. This jurisdiction the court has since frequently exercised. If, then, a survey be made under the decree in this case, it will be the duty and within the power of the court to hear any objections to it that may be urged. If there be any ambiguity or lepugnance in the decree, it will be the duty of the court to construe and explain it. The decree, as has been stated, sets forth the boundaries of the tract confirmed. But, though it does not mention the quantity, it refers for more particular description to the grant and the diseño, with the note by Zamorano. In one of these documents the quantity of land is clearly expressed as “two leagues, a little more or less” (which the supreme court has decided to mean two leagues); and in the other its extent is declared to be a little more than two leagues in length, and a little less than one league in width. If then the grant and diseño are to be consulted and followed in these respects, the boundaries cannot be reached. If the land is surveyed according to the boundaries, the limitation of quantity contained in the grant must be disregarded. A case is thus presented where the decree must be construed and explained by the court; and, under the circumstances of this case, and the law as laid down by the supreme court, there can be no doubt as to what the construction should be. If the views taken by the claimant be correct, it would follow that, notwithstanding that the decree of the court was made on a misconception of the facts occasioned by evidence produced by the claimant himself, and notwithstanding that a motion to open the decree was duly made before the expiration of the term, yet by reason of a purely formal stipulation, given by the district attorney in igno-.'ance of the facts, this court is not only powerless to amend its decree, but is bound to confirm a survey, giving to the claimant at least double, and it might be ten times, as much land as he is entitled to claim. Such cannot, it seems to me, be tiie duty of the court. As, then, this court has the right and may be required to construe and explain this decree, when a survey under it shall have been made, and to instruct the surveyor as to the manner in which a new survey shall be made, it is clearly within its power, when its attention is called to the decree in advance of the survey to explain and construe it in such a manner that a survey may in the first instance be made under it, such as it would if a survey had already been submitted to it, direct to be made. By this means the expense and delay of two surveys are avoided, and the surveyor is relieved from all embarrassments in the matter. It is- for the foregoing reasons the opinion of the court that the decree in this case should be amended, and that, as in the decree ordered by the supreme court in the case of U. S. v. Fossatt [supra], the grant to the original grantees should be adjudged to be for two square leagues of land to be taken within the boundaries mentioned and decree of concession and delineated on the diseño in the grant, to be located at the election of the grantee or his assigns, under the restriction established for the location and survey of private land claims in California, by the executive department of this government; and that the claim of the claimant to one undivided half of the said two leagues be confirmed to him.

PER CURIAM: Peter Warren Kenny, appointed counsel for James R. Gaines in this direct criminal appeal, has moved to withdraw from further representation of the appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record reveals that counsel’s assessment of the relative merit of the appeal is correct. Because independent examination of the record reveals no arguable issues of merit; counsel’s motion to withdraw is GRANTED, and Gaines’s conviction and sentence are AFFIRMED.

MEMORANDUM Larisa Gevorkova and her husband, Ser-go Gevorkova (collectively, the Gevorko-vas), natives of the former Soviet republic of Georgia, petition for review of a final order of the Board of Immigration Appeals denying their application for asylum, withholding of removal, and application for relief under the Convention Against Torture. We deny the petition for review. There was substantial evidence to support the immigration judge’s adverse credibility determination with respect to past persecution. There was inconsistent testimony between Mr. and Mrs. Gevorkova or between testimony and the asylum application with respect to whether Mrs. Gevor-kova went to the Refugee Committee at all, whether her birth certificate was presented to the Refugee Committee and was rejected because she was Abkhazian, whether both Mr. and Mrs. Gevorkova were attacked in Sochi, Russia, and whether the attack on Mr. Gevorkova in Tbilisi, Georgia was reported to authorities. These inconsistencies are not minor or unimportant, but rather go to the heart of the Gevorkovas’ claim of past persecution, see Ceballos-Castillo v. INS, 904 F.2d 519, 520 (9th Cir.1990), and thus support an adverse credibility finding and denial of the asylum application. Likewise, the Gevorkovas are unable to show an objectively reasonable, well founded fear of future persecution. To show future persecution, they relied mostly on the same evidence of past persecution that lacked credibility, and accordingly, the evidence presented was not “so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” INS v. Elias-Zacarias, 502 U.S. 478, 484, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). The Gevorkovas’ application for withholding of removal was also properly denied. A failure to meet the standard for showing a well founded fear of future persecution necessarily precludes -withholding of removal, which requires a more stringent standard be met. See Mansour v. Ashcroft, 390 F.3d 667, 673 (9th Cir.2004). There is virtually no evidence to support the Gevorkovas’ claim for relief under the Convention Against Torture. Again, much of the same evidence of past persecution that lacked credibility is relied upon, see Farah v. Ashcroft, 348 F.3d 1153, 1157 (9th Cir.2003), and any additional evidence does not rise to the level of showing “it is more likely than not that [they] would be tortured if removed to [Georgia].” 8 C.F.R. § 208.16(c)(2). PETITION FOR REVIEW DENIED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. PREGERSON, J., dissenting: I dissent. Larisa Gevorkova and her husband, Sergo Gevorkova, are Georgian nationals of mixed ethnicity. Because of their mixed ethnicity and the ongoing strife and hostility between Georgia and Abkhazia, the Gevorkovas faced significant persecution. They were not safe in the Georgian city of Tbilisi because of Mrs. Gevorkov’s Abkhazian ethnicity, and they were not safe in Abkhazian areas such as Sokhumi or in Russia because of Mr. Gevorkova’s Georgian and Armenian ethnicity. Accordingly, I believe that, if forced to return to Georgia, there is at least a ten percent chance the Gevorkovas will face future persecution because of their mixed ethnicity. See Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir.2001) (“[E]ven a ten percent chance of persecution may establish a well-founded fear.”). I would grant the petition for review and reverse the Board of Immigration Appeals and Immigration Judge’s determination that the Gevorkovas are not eligible for asylum.

Dl'ER, District Judge. The question bearing upon the right of the defendant to a new. trial arises upon the misconduct of one of the jurors while the trial of the cause was in progress. At the beginning of the trial the jury were cautioned against having any conversation with any person about the case, and against allowing any person to approach them for the purpose of having such conversation, and against permitting any conversation relating to the ease to be had in their presence. The admonition was pointedly given and must have been well understood by the jury and by all parties present. At a subsequent stage of the case the defendant, through his counsel, made application for an order granting to the jury leave to visit and examine his rectifying house, where it was alleged illicit spirits had been manufactured. His application was denied, and the denial was accompanied with observations on the part of the court, which must have given the jury and all parties interested distinctly to understand that the case was to be heard and determined upon the evidence adduced in court, and that no other sources of knowledge or information were to be consulted. Nevertheless, before the conclusion oi the trial, one of the jurors, without the knowledge or leave of the court, visited the rectifying house and made extensive examinations of the same in company with the defendant. The circumstance was first brought to the knowledge of the court after verdict, by affidavits of the facts made by the defendant and certain of his witnesses. • Proceedings were at once taken for an investigation of the conduct of the juror, which resulted in the imposition of such punishment as the court at the time thought his misconduct warranted. This act of the offending juror has been earnestly urged as ground for a new trial. Invoking, as counsel did in support of their view, the rule which limits the inquiry of a juror in the case he is called to hear to the evidence adduced at the trial, unless otherwise ordered by the court, and also those general principles regulating jury trials which are essential to a pure and impartial administration of justice, and impressing also upon the attention of the court the circumstance that there had been such transgression by the juror as merited, and made it the duty of the court to impose, suitable censure aDd punishment, my mind was at the time strongly impressed by the argument which counsel for defendant made upon this branch of the case. In testing its soundness as applicable to the ease at bar, it seems essential that we look closely into the particular circumstances and facts connected with the admitted misconduct of the juror. The material portions of the affidavit made by the defendant and presented to the court as the basis for proceedings against the juror, are as follows: “That on the 16th day of April, A. D. 1878, at or about the hour of one p. m. of said day, said Horace De Long, juryman as aforesaid, came to the rectifying house of M. J. Salentine, No. 227 Reed street, in said city, which is the rectifying house spoken of in the testimony introduced in the trial of said action, and which contains the tubs and still where the illicit distillation of spirits is alleged to have been carried on; that I saw the said De Long inside of the said rectifying house when I came to the place at said time; he then stated that he had come into the establishment to look over the same and see how things were, or words substantially and to that effect. He then asked me where the barrel of wine was lying that had been spoken of in the evidence during the trial, and X showed him the place; he asked me what the big tubs were for which stood in the rectifying house, meaning the receivers; he then said, in substance, that he wanted to go into the still and see where the mash was alleged to have been made; he then went into the still room; he looked at the dumping holes leading through the still room floor into the tubs, and said: “That is the place where they said you made your mash,’ and I said ‘Yes;’ he then looked at the still and the other tubs in the still room. '* * * Said De Long then went into the stable connected with said premises, and asked me where the place was where the jug of liquor was hid; then the said juryman, saying that he wanted to see the place where the molasses was laid, went to the rear of the store on Virginia street, where it was proven that the molasses was stored; he looked into said store room and examined the side walls in front, and remarked that it was a poor hiding place. The said juryman then returned, as I remember, into the still, and from there the said juryman went up stairs and looked about upon the second and third floor of said establishment; he examined the iron basket of the still spoken of in testimony, and also the top of the column in the still; he and I then went back into the store.” The affidavit of the juror, made in the proceeding against him for contempt, varies in some particulars from that of the defendant, but it is in substance an admission of the alleged misconduct, and shows that the defendant participated with him in the examination of the premises, and pointed out to him various places and objects in the rectifying house referred to in the testimony. For the purposes of the pending question of a new trial, we may accept the affidavit of the defendant as giving a truthful statement of the occurrence. The facts then being as stated by the defendant, the question is, do they entitle him to a new trial? That the rule touching the-effect of misconduct of a juror upon a verdict is a strict one, cannot be denied.- That it is-also a salutary rule, and one to be faithfully observed as essential to the purity of jury trials, must without hesitation be admitted. The books are full of cases where the rule has been enforced. And, although there is some disagreement in the authorities on the point, I think the weight of authority is, that it is not necessary in order to justify the court in setting aside a verdict for irregular conduct of a juror, to show affirmatively that such conduct influenced the jury or affected the verdict. The misconduct of a juror, if it occurs without the knowledge or participation of the party litigant, taints the verdict; that is, provided it was of such a character that it might have had an undue influence. Says Judge Clifford in Johnson v. Root [Case No. 7,409]: “Irregularity on the part of the party charged or of the jury, must be satisfactorily proved in order to lay a foundation for the interposition of the court, but when the irregular conduct is established, it is not necessary that it should certainly appear that it influenced the jury. In that state of the case it is sufficient that the irregularity appears to be of a character that it might have affected the impartiality of the proceedings.” Such was the rule laid down in Com. v. Roby, 12 Pick. 520, and it appears to be correct. In thát case the court says that where there is an irregularity which may affect the impartiality of the proceedings, as where meat and drink or other refreshments have been furnished by the party, or where the jury have been exposed to the effect of such influence, as where they have improperly separated themselves or have had communications not authorized, inasmuch as there cannot be any certainty that they have not been improperly influenced, the proper and appropriate mode of correction or relief is by undoing what has thus been improperly and might have been corruptly done. Text writers have stated the rule as follows: “That whenever it seems satisfactorily to appear that the jury were influenced by improper motives, or that they acted corruptly or under restraint, and it clearly appears that a fair trial has not been had, the verdict will be set aside and a new trial granted. Any improper interference with the jurors may afford sufficient grounds for granting such a motion, and it is not necessary that the attempt to influence the jurors should be made by one of the parties, nor even by his agents. It is sufficient, if it clearly appear that it was done in his behalf, and it is never necessary to show that the misconduct controlled or determined the verdict, provided it was of a character that it might have had an undue influence.” In Knight v. Inhabitants of Freeport, 13 Mass. 21S, the plaintiff’s son-in-law said to one of the jurors that the cause was of great conse- quenee to him; that he should have to pay the costs if the cause should go against the plaintiff, and that the defense of the action was a spiteful thing on the part of the defendants. On motion of defendants a new trial was granted, the court remarking that “too much care and precaution cannot be used to preserve the purity of jury trials. The attempt to influence the juror in this case was grossly improper, and ought to be discountenanced. It is not necessary to show that the mind of the juror thus tampered with was influenced by the attempt. Perhaps it is not in his power to say whether he was influenced or not. If he was, there is sufficient cause to set aside the verdict, and if he was not, and the party who has gained the verdict has a good cause, he will still be entitled to a verdict upon another trial. We cannot be too strict in guarding trials by jury from improper influence. This strictness is necessary to give due confidence to parties in the results of their causes, and every one ought to know that for any, even the least intermeddling with jurors, the verdict will always be set aside.” As illustrative of the extent to which the courts go in setting aside verdicts for improper attempts to influence jurors, the following cases are in point: Hamilton v. Pease, 38 Conn. 115; Perkins v. Knight, 2 N. H. 474; Bennett v. Howard, 3 Day, 223. See, also, Sargent v. Roberts, 1 Pick. 337; Dana v. Roberts, 1 Root, 134; Farrer v. Ohio, 2 Ohio St. 54; Riley v. State, 9 Humph. 646; Foster v. Brooks, 6 Ga. 287; State v. Andrews, 29 Conn. 100, and many other cases which might be cited. In this connection it may be observed that in Mcilvaine v. Wilkins, 12 N. H. 474, the court, in discussing this subject, say, that “scattered throughout the reports there are far more eases than there should be of applications for new trials, founded upon evidence tending to show sometimes attempts by a party to prejudice a jury in his favor, and sometimes conduct in jurymen indicative of a forgetfulness of the important responsibilities resting upon them.” And Mr. Hilliard says in his work on New Trials (Hal. New Trials, c. 10, § 11) that the weight of authority would seem now to be that conversation with jurymen, more especially, unless held when they are together, is not ground for a new trial; citing Davis v. Taylor, 2 Chit. 268; Parke’s Case, 2 Rolle, 85; Hall’s Case, 6 Leigh, 615; Luster v. State, 11 Humph. 169; Rowe v. State, Id. 491. Visiting the scene of the res gestae by jurors, without permission of the court, ahd with a view to obtain information touching the facts of the case on trial, or for explanation of testimony, is ground for a new trial. Such, in effect, was the ruling in Eastwood v. People, 3 Park. Cr. R. 25; Ruloff v. People, 18 N. Y. 179; and Deacon v. Shreve, 22 N. J. Law, 176. In the light of the authorities to which I have referred, and many others to which reference might be made, if it appeared in the case at bar that the juror held conversations with other parties than the defendant about the merits of the case while the trial was in progress, or visited the defendant’s rectifying house for the purpose of examining the same, without defendant’s knowledge or cooperation, I should have little hesitation in setting aside this verdict. The question now is, is the defendant in a position to invoke the application of the rule which gives to a party, pz-esumably prejudiced by the misconduct of a juror, the benefit of a new triál. He had knowledge of the refusal of the court to permit the jury to visit the premises. Xet, finding the juror there while the trial was in progress, he conducted him over the premises, and, as appears by his own sworn statement, pointed out localities and objects concerning which testimony had been given. He knew that the court had forbidden the jury to have conversations with persons concerning the case, yet, according to his own affidavit, he held such conversation with the juror while accompanying him through the rectifying house. In view of what had transpired in court in his presence, and in view of the statement in his affidavit that the juror told him that he did not want any one to know he had been at the rectifying house, it is to my mind clear that the defendant knew that the conduct of the juror was a violation of his duty, and was in disregard of the orders of the court. Xet he made no report of the transaction to the court, nor even to his counsel, but sat silent and permitted the trial to proceed without complaint until after verdict when he makes complaint in the form of a motion for a new trial, on the ground that he was prejudiced by the misconduct of the juror, in which he participated, and to which he was a party. I have examined with care all the cases cited by counsel, and many more bearing upon this question, and I have been unable to find a case in which a new trial was granted for misconduct of a juror, in which the party asking for a new trial participated. The cases in which such misconduct was held ground for a new trial were, so far as my observation extends, where the misconduct was between the juror and a third party, or between the juror and the successful party in the litigation, and of which the losing party was at the time ignorant, and with which he was in no manner connected. Now, although “the utmost precaution should be observed to prevent any attempt to forestall the judgment or to bias the mind of a juror in reference to the merits of an issue which he is called on to decide,” and although “all trials by jury ought to be effectually guarded against the exertion of every species of improper influence,” the question is. whether, when a defendant makes himself a party to the miscon duct of a juror, he can sit silent until verdict rendered, and then if the verdict shall be against him, can be heard to urge such misconduct as a ground for setting aside the verdict. As, for example, suppose a juror communicates a willingness to accept a bribe, and the party pays him a bribe, and the bribe proves ineffectual, and there is an adverse verdict, can the party who has thus dealt with the juror ask for the benefit of a new trial, basing his application upon the corrupt act of the juror? As I understand the rule upon this subject, it is enforced for the benefit and protection of those who are themselves innocent of any participation in the misconuuct complained of. It is true that in the present case the juror’s visit to these premises was not brought about, nor originally induced, by any act of the defendant. The juror was there of his own volition, and was there when the defendant first met him; but the defendant at once lent his encouragement and co-operation to the act of the juror, and, as I have said, accompanied him over the premises, pointed out different objects upon the premises to which the testimony on the trial related, and conversed with him about particular parts of the establishment which they were then mutually observing. Clearly, both parties—the juror and the defendant— were equally in flagrante delicto. For this offense against the proprieties of judicial investigation, punishment has been inflicted upon one; and now to grant a new trial because of such offense, would be to reward the other, when both are alike culpable. For I cannot but regard both as alike at fault, since the defendant, finding the juror on the premises, actively aided and facilitated him in his examination of the scene of the res gestee. It is impossible for me to believe that the defendant supposed that the juror had a right at that time to visit and examine the establishment, and his subsequent silence touching the occurrence until after the verdict, looks strongly like a purpose, originally, not to divulge the circumstance unless the verdict ! should be unfavorable. By his own course of action as a participant in the misconduct of the juror, I think he has foreclosed his right to ask that the verdict be set aside because of such misconduct, iso other conclusion is, in my judgment, reconcilable with a reg- i ular and proper administration of the law, ' and I find no authority that supports a con- ! trary determination in such a state of the case. NOTE. The test of prejudice to a party from misbehavior of a juror is this: Was his misbehavior such as to make it probable that his mind was influenced so as to render him an unfair and prejudiced juror? If the misbehavior appear, the disclaimer of the juror should be wholly disregarded. And it is of no importance whether or not the court thinks the verdict was right. Pool v. Railroad Co., 6 Fed. Motion for a new trial denied.

MORSELL, Circuit Judge, thought the breach bad in not averring that Beale had refused to give new security. [See Case No. 15,876.]

STORY, Circuit Justice, said; that Chip-man’s boat was not a revenue cutter, there being only ten of those commissioned by the president, and making a part of the naval force. He also remarked, that inspectors were either general or special. DAVIS, District Judge, referred to the act of April 25th, 1808, § 7 [2 Stat. 501], “Revenue Cutters or Boats.” Prescott. Chipman appeared as cutter-master, not as inspector. There is a distinction between cutters and revenue-boats. The latter must be open row-boats, or sail-boats. Chipman’s boat was not of this description. As to the fifth reason, Prescott argued, that the statute gave no authority to the inspector to enter for the purpose of ascertaining an intended breach, and only in one case, that provided in the 54th section, authorized him to enter for the purpose of ascertaining a breach actually committed, unless under the direction of the collector. By the 68th section authority is given to the collector, naval officer, and surveyor, to search for dutiable goods (obtaining a warrant, if on land), but none to the inspector. By a section of the embargo law, vessels were to be loaded under an inspector, but this must tie by direction of the collector on his permit. STORY, Circuit Judge, suggested the case of a coasting vessel, having a cargo beyond $800, and asked, whether an inspector could not enter to ascertain, whether such vessel was about to sail without a clearance. Blake, e contra, was told by the court, to confine himself to Prescott’s two last reasons, the court having no doubt as to the others. He was also requested to speak to so much only of the fifth reason, as respected goods illegally laden for exportation. . He contended, that it would have been enough to allege generally, that Chipman went on board, in the execution of his duty. An inspector may seize, as well as examine. The object of the revenue act is to search as to an offence committed; that of the 11th section of the embargo act, to search as to offences contemplated. In the case of an inspector resisted, but overcoming, and sued for an assault, he would not be required, in his defence, to show his purpose; it would be enough, if he show his authority as inspector. If an inspector may board without any reason assigned, can the indictment be bad on account of the particular fraud alleged? Blake compared this case to that of a sheriff. In answer to Prescott’s fourth reason, Blake contended, that it was not necessary that the jury should have evidence, that the defendants knew Chipman’s authority. They resisted at their peril. It was like resisting a sheriff. But, in fact, their behavior to Chip-man, and conversation with him, show, they were not ignorant of his character. STORY, Circuit Justice, referred to Act (Jan. 9) 1809, § 4 [2 Stat. 507], and Act April 25, 1808, § 2. From these acts it should seem, the inspector may enter and report to the collector, whether a vessel is entitled to a clearance. Prescott answered, that the inspector’s authority cannot extend to all cases. It is con-, fined to particular vessels; otherwise, he be-comes collector. In reply to Blake, Prescott contended, that' there was not a dictum to support the extent of power, now attempted to be given to the inspector; that it could not be supposed, so large a power was intended to be given to an inferior and irresponsible officer. The CStlj section of the collection law is explicit, as to the duties of officers. The collector, naval officer or surveyor, may enter to search for goods subject to duty, and concealed. There is nothing about an intention to offend. It appeared from the evidence, that the vessel was laden before the enforcing act This act passed on the 9th March, and was received in Boston on the 16th. There was no evidence to show, that on the 20th, when the offence, if any, was committed, this act was known to the collector, much less to the inspector, then absent from the collector. No offence was committed against this act, until, after notice, the owner had refused to unload or give bond. As to the other reason, in civil causes, a verdict will be set aside, if found without evidence; a fortiori, in criminal causes. If the jurors have any knowledge upon the subject, they must disclose it at the trial under oath. STORY, Circuit Justice, observed, that formerly such a disclosure on oath was not necessary. STORY, Circuit Justice. The indictment charges, that on the 20th of January, 1809, one John Chipman was “an inspector and officer of the customs for the port and district of Barnstable,’’ and on the same day, with certain assistants, “did attempt to go on board of a certain schooner or vessel called the ‘Dinah,’ then being at the aforesaid port of Chatham, and laden with a cargo of goods and merchandize, and about to proceed therewith on a voyage to sea; which said vessel was then and there a vessel of the United States, duly enrolled and licensed, according to the directions of the law in such case provided, for the coasting trade; and that the said John did attempt to proceed and go as aforesaid, on board of the said vessel, with the intent, and for the purpose of inspecting, searching and examining the said vessel and her papers, in order to ascertain if any breach of the laws of the United States had been committed, whereby the said vessel, or the goods and merchandize then on board, or any part thereof, was or were liable by law to forfeiture or seizure; and also to discover if any goods and merchandizes had been laden and put, and then were on board of the said vessel, for the purpose of being exported therein from the United States, and frpm the port, aforesaid, contrary to the laws of the United States:” and then charges that the defendants, while the said John and his assistants were “in the execution of the duty aforesaid,” assaulted the said John and his assistants, and then and there resisted, obstructed, prevented and impeded them “in the execution of the laws of the United States, and of their duty aforesaid,” against the statutes in such case made and provided. At the trial the jury found all the defendants guilty, and now their counsel has moved for a new trial, as well as in arrest of judgment, upon certain exceptions, which I will now proceed to consider. The first is, that an inspector is not an officer of the customs; for obstructing whom, an indictment lies on the 71st section of the act of 2d March, 1799, c. 128 [1 Story’s Laws, 633; 1 Stat. 678, c. 22], The charge in the indictment is, that he was “an inspector and officer of the customs;” and the latter, if properly alleged and proved, would have been sufficient to support the indictment. But we entertain no doubt that an inspector is “an officer of the customs,” and so is within the purview of the 71st section. He is an officer known to and recognised by the law; his duties are in many instances prescribed,and the omission of those duties, or any fraudulent conduct in his office, will subject him to heavy forfeitures (see sections 53, 73, Act March 2, 1799 [1 Story’s Laws, 664; 1 Stat. 704, c. 23]). In the same act he is sometimes called an “inspector of the revenue” (sections 30, 35, 37, 38, 40-42); .sometimes an “inspector of the customs” (sections 38, 46, 53); sometimes an “officer of inspection” (sections 39, 62); and sometimes an “officer of the revenue” (section 53). It seems difficult to raise a doubt, that the officer so named is an officer of the customs. But there is a still more direct expression, which puts the meaning beyond all controversy. In section 73, it is provided, that if “any inspector or other officer of the customs” shall certify the shipment of any merchandize, without inspection. &e. he shall be subject to certain forfeitures, &c. The same act (section 25) provides, that manifests of the cargo shall be produced to such officer of the customs as shall first come on board of any vessel, on arriving within four leagues of the coast, for his inspection: and further (section 54) declares, that an inspector may go on board of such vessel for the purpose of examining such manifests. There can therefore be no possible doubt, that an inspector is, in contemplation of law, an officer of the customs. See Act March 2, 1799, c. 129. § 2 [1 Story’s Laws 664; 1 Stat. 704, c. 23.] A second objection is, that no proof was adduced at the trial, to show that the secretary of the treasury had approved of the appointment of Chipman, as inspector. The words of the act as to this point are (section 21), that the collector “shall, with the approbation of the principal officer of the treasury department, employ proper persons as weighers, gaugers, measurers and inspectors, at the several ports within his district.” It may well be doubted, if this clause require an approbation of the specific officer appointed, or amount to any thing more than that the employment shall not be created without the approbation of the secretary. But admitting that it does, the commission of the inspector reciting such approbation was proved at the trial; a copy, from the treasury department, of the oath taken by him, and an actual execution of the duties of the office, which we are satisfied was sufficient evidence to support the allegations in the indictment, and to prove him lawfully an inspector. A third objection is, that the commission of the collector, who appointed the inspector, was not produced, and therefore there was no proof of his authority. But it is a sufficient answer to this objection, that the commission was fiot necessary to be proved. It was shown that the party had actually executed the duties of the office of collector for many years; and nothing more is necessary to be proved in cases punishable with the highest of human penalties, even the forfeiture of life. 2 McNal. Ev. 487; Berryman v. Wise, 4 Term B. 366; 1 Leach, 381n.; 2 Leach, 381;. Harg. Law Tracts, 225, 226; 3 Camp. 432; Wightw. 67; Doe d. James v. Brown, 5 Barn & Ald. 243. A fourth objection is, that it was not proved at the trial that the defendants knew that Chipman acted or claimed 'to act as inspector; and it is said, that if the jury find a verdict without evidence, it is as sufficient a ground for a new trial, as if it be found contrary to evidence; and 2 Wils. 47, and 2 Tidd, Prac. (4th Ed.) 802, are cited to support the position. Admitting the doctrine to be true, (and it may well admit of qualification,) still we are of opinion that there were facts in the case sufficient to warrant the inference made by the jury, that the defendants knew the character in which Chipman acted. The last objection, and the only one which seemed of much weight is, that the inspector had no authority by law to proceed on board the vessel “to discover if any goods, &c. had been laden, &c for the purpose of being exported &c. contrary to the laws of the United States,” according to the charge in the indictment; and therefore, if the officer were attempting to proceed for this purpose, it was not in the execution of the duties of his office: whereas the court directed the jury, that in point of law the officer had such authority. The direction of the court was •given, as is supposed in the objection, and with the view of reserving the point for more solemn consideration. No statute has been shown, which directly and explicitly gives the authority to any officer of the customs. If it exists, it is an authority implied from the provisions of the acts regulating the trade of the United States. At -the time when the offence was committed, as charged in the indictment, all the embargo acts were in full operation. . It will be recollected that this was a coasting vessel, which by the ordinary laws, under no circumstances, could be allowed to engage in foreign trade while her license was in force; and that the proceeding on a foreign voyage, or being employed in any other trade than that for which she was licensed, subjected her to forfeiture. Act Feb. 18, 1793, c. 8, §§ 8, 32 [1 Stat. 305]. By the embargo acts these provisions were sedulously enforced, and new restrictions followed up with successively increasing rigor. A licensed vessel was not allowed to depart from port, or to receive a clearance, without giving bonds that she would not proceed to any foreign port. Act Jan. 9, 1808, c, 8, § 1 [2 Stat. 453], The departure without a clearance, or proceeding to a foreign port, incurred the penalty of forfeiture. Id. § 3. It was de-Glared unlawful to export from the United States any goods, wares or merchandises whatsoever, under a like forfeiture. Act March 12, 1808, c. 33, § 4 [2 Stat. 474]. No vessel was allowed to receive a clearance, unless laden under the inspection of the proper revenue officers (Act April 25, 180S, c. 66, i 2 [2 Stat. 299]): and if bound to a district adjacent to a foreign country, without the special permission of the president of the United States (Act April 25, 1808, § 6). The collectors were authorized to detain any vessel, ostensibly bound with a cargo to some other port of the United States, whenever, in their opinions, there was reason to suspect an intended violation of the law. Id. § 11. The putting on board of any ship any goods or merchandise, with an intent of illegal exportation, subjected the property to forfeiture. Act Jan. 9, 1809, c. 72, § 1 [2 Stat. 506]. The lading of goods on board ships was declared illegal, unless made by permission of the collector and under the inspection of the revenue officers. Act Jan. 9, 1809, c. 72, §§ 2, 4. Vessels already laden were required to be unladen, or to give the bonds required by the law. Id. § 3. The president of the United States was authorized to give instructions to the “officers of the revenue” for carrying the embargo into effect (Act Dec. 22, 1807, e. 5, § 1 [2 Stat. 451]); to instruct the collectors as to the detention of vessels, and of goods having an illegal destination (Act April 25, 1808, c. 66, § 11), and as to the refusal to grant clearances (Act Jan. 9, 1809, c. 72, § 10); and to employ the land and naval forces and militia of the United States in suppressing assemblages which should be resisting “the customhouse officers in the exercise of their duties” (Id. § 11). And finally, the penalties and forfeitures incurred under these statutes were to be recovered and distributed in general, as under the collection act of March 2, 1799, c. 128. These are a part of the provisions, which composed the system of restrictions on- commerce and navigation. Almost all the provisions were to be carried into effect by the vigilance of custom-house officers. Though not expressly named, it seems quite impossible to presume, that the provisions which I have cited did not presuppose their agency. The collectors could alone grant or refuse clearances. The lading could alone be made under the inspection of the inspectors and other officers of-the customs. The authority of interposing to prevent an illegal exportation or departure, or of seizing upon the commission of an of-fence, could not be exercised without examining the state and condition and papers of the vessel and cargo. In short, without an implied authority, from the nature of their offices and the requisitions of the laws, to enter on board, and, in the language of the indictment, “to discover if any goods. &c., had been laden, &c.,on board of the said vessel, for the purpose of being exported therein from the United States,” I do not see that it could have been possible, either to execute the known provisions of the law, or to have avoided infringements of the rights of the citizens. Indeed, the authority in the president of the United States to instruct “the officers of the revenue,” in carrying into effect the embargo, and aiding with military force “the custom-house officers,” in the execution of their duties, presupposes that the law had already devolved these duties upon them. It is conceded that an inspector had a right to go on board a vessel to examine, &e., if any breach of the laws of the United States had been committed. Now, at the time when this transaction took place, it was a breach of law to lade goods, &c., for the purpose of illegal exportation. It would follow, therefore, that the inspector had an authority to go on board to examine into this fact. If the inspector had not this authority, neither had the collector; for it is no where expressly given; and if it be necessary or proper completely to execute other duties, it would result by implication to an inspector as well as a collector. As I have before observed, the laws seem to consider it already existing, and extend the authority to commanders of revenue boats, which by law are to be appointed for the use of surveyors and inspectors. Act March 2, 1799, e. 128, § 101 [1 Story’s Laws, 633; 1 Stat. 678, c. 22]; and Act April 25, 1808, c. 66, § 7 [2 Stat. 501]. It is certainly not to be inferred from this reasoning, that officers of the customs have an unlimited authority over the commercial property of the citizens. In the nature of things they must have some implied powers. The legislature would, in vain, attempt to enumerate them; and I think it may be safely assumed, that they may exercise all powers necessary and proper to effectuate the manifest intentions of the law connected with the duties of their office. To them is committed the general management of the revenue laws, be they of exportation or importation; and I think it would be dangerous in the extreme to adopt the-position that every act of theirs must be shown sub pede sigilli. They act at their peril. If they invade the rights of the citizens under color of office, this court will, I trust, be the last to afford them a shelter or a refuge. On the whole, after some doubt and much reflection, I am now satisfied that the last objection ought not to prevail; and that the opinion of the court at the trial was well founded in principle. My search in the books has not enabled me to detect a single authority or principle, which is shaken or opposed in coming to this determination. Judgment on the verdict

THE COURT decided, that the words which the defendant spoke accompanying his actions, should be given in evidence against him, to show the intention of the defendant in his interference and in aggravation of the penalty. Mr. Mason prayed the court to instruct the jury that Orneara, being in custody of Aber-crombie, under the order of Mr. Hoffman, was also in his custody under the warrant of Mr. Faw, although he did not inform the prisoner that he arrested him on that warrant. Mr. Taylor, for defendant cited Countess of Rutland’s Case, 6 Coke, 54, that it is necessary to inform the person arrested that he is arrested under a particular warrant, or he cannot be held under it THE COURT gave the instruction as prayed by Mr. Mason.

THE COURT (nem. con.) was of opinion that it was not larceny. See Chit. Cr. Law, 907: 2 Russ. Crimes, 118; and Rose. Cr. Ev. 493.

BY THE COURT. In the opinions heretofore delivered in this case [see Case No. 16,185 and note] it was considered that the land granted to the claimant was bounded on the south by the Arroyo de los Frijoles, on the west by the sea, and on the east by the sierra. The northern boundary is not mentioned in the grant. But, as that instrument professes to be merely a ratification of a previous provisional concession, and as the provisional concession described the tract as the land of Butano, “as shown in the expediente,” the map found in the expediente, and which constituted the only means of identifying t): land provisionally granted, was referred ror the ascertainment of the northern boundaries. On this map the Arroyo del Butano is clearly laid down as the northern boundary of the tract, the lands to the north of it being inscribed as those of Gonzales. On the diseño of Gonzales, the Butano is, in like manner, laid down as the southern boundary, and both the decree of concession and the grant describe his land as bounded by the rancho of Buelna, the sierra, the coast, and the Arroyo del Butano. There was much reason to contend that the grant to Gonzales, which was older than that to Rodriguez, was intended to embrace all the land within his external boundaries. The supreme court, however, seem to have thought that he should be restricted to three-fourths of a league, to be surveyed within his out-boundaries. But there can be no doubt that the external boundaries, within which his land was to be taken, were the rancho of Buelna, the sierra, the sea, and the Arroyo del Butano. On the diseño of Gonzales, the Butano is represented as flowing with a slight curve, from the sierra to the sea. On the diseño of Castro the arroyo supposed to be the Frijoles, is also delineated as flowing in a general westerly direction from the sierra to the sea. It appears, however, that the course of both of these creeks is, for some distance, not far from parallel to the sierra, after which they deflect to the west, and fall into the ocean in such a manner as that their lower portions might be conveniently adopted as the northern and southern boundaries of the rancho. As the grant called for the sierra as the eastern boundary, and the quantity granted and confirmed was one square league, it appeared to me reasonable to adopt the Butano only so far as it could serve as a northern boundary to the rancho; and not, by following its course where it flows nearly parallel to the sierra, make it serve as the eastern boundary, also thus cutting off the grant from the sierra called for as boundary. The diseño of Rodriguez represents neither the sierra nor the upper part of the Butano. It delineates a small and readily identified tract, between the two'streams and the ocean. But the petition which this diseño accompanied, was for a tract half a league in extent. The provisional grant was for a tract of one league, and the title which ratified was for one league bounded by the sea, the sierra, and the rancho of Castro, on the south. I therefore consider that in order to meet the call for the sierra, and to obtain, if possible, the quantity, the northern line should foliow the Butano so far as it was delineated on the diseño, where it was evidently intended to represent the northern boundary of the half league, originally solicited, and thence in a direct line to the sierra, crossing the Butano at or near the point where its course in ascending it deflects to the south, and becomes parallel with the sierra. It is now sought to obtain the quantity, not by running from this point easterly to the sierra, but by turning abruptly to the north at nearly right angles to the course of the Butano, and parallel to the sea, to include the sobrante of the Gonzales grant, left vacant by the restriction of the latter to a tract of only three-fourths of a league. The land so included is clearly within the exterior boundaries of Gonzales, and the survey would include a considerable portion of the Pescadero- creek, represented on the Gonzales diseño as flowing diagonally through nearly the centre of the tract. It would embrace land always claimed by Gonzales, included within his boundaries delineated on his diseño, and to the whole of which there is much reason to suppose, as contended by his counsel, his title should have been confirmed. That no portion of it could have been intended to be given by a subsequent grant to Rodriguez is manifest. His diseño represents no part of it, but recognizes the land on the north of the Butano as belonging to Gonzales. His grant does not call for it, for it merely describes the land as bounded by the sierra, the sea, and the rancho of Castro. Gonzales reports that the land asked for by Rodriguez is vacant, which he assuredly would not have done if it had been supposed to include any part of the land previously granted to himself. I am unable to perceive on what principle, or by what authority, I can, in effect, decree an equivalent to Rodriguez for any deficiency of quantity within his exterior boundaries out of a sobrante accidentally found to result within the exterior boundaries of his neighbor. With respect to the southern boundary, it is to be observed that the Arroyo Frijoles was, at the urgent suggestion of the counsel for and owner of the Rodriguez claim, adopted as to the southern boundary of the latter and the northern boundary of the Castro grant. The lands of Castro unquestionably extended from the sierra to the sea, and from the lands of Hilario Buelna, on the south, to an arroyo on the north. The arroyo was delineated on the diseño as running from the sierra to the sea. After much consideration it appeared to me that the arroyo intended was the Frijoles, notwithstanding that the grant called for the lands of Gonzales as the northern boundary of Castro, and the Gonzales rancho was confessedly bounded by the Butano. Had the latter stream been adopted as the boundary of Castro, the effect would have been to exclude altogether the grant to Rodriguez, for the grants to Gonzales and Castro would have been coterminous. The Arroyo de los Frijoles having been thus adopted as the northern boundary of Castro, it became of necessity the southern boundary of Rodriguez, as required by the grant, and suggested in the report of Jimeno, who recommends the grant with the express' understanding that “it is to be without prejudice to the rights of the heirs of the deceased Simeon Castro.” It is now said that the Arroyo Frijoles in its upper portion is indistinctly traceable, and that it could not serve as a boundary in its whole course from the sierra to the sea. If this be so, it affords an argument against the adoption of that stream as the northern boundary of Castro, and it may justify the inference that the court should have taken the Butano as the boundary, thus excluding the Rodriguez grant altogether. But it hardly lies in the mouth of the present owner of both ranchos to make the objection, as the Frijoles was adopted as the dividing line between the ranchos at his suggestion, and in conformity with the agreement strenuously urged by himself. Assuming the decision of the court to be correct, and any other supposition would prevent any location whatever of the Rodriguez claim, it is clear that the boundary of Castro was a stream flowing from the sierra to the sea, and, as that stream is decided to be the Frijoles, the latter must be adopted throughout its' whole extent. The survey should, therefore, be made by adopting, as the true northern line of Castro, the Arroyo de -los Frijoles from the sierra to the sea. If it should be found that the sierra cannot be reached by ascending the Frijoles, then the stream is to be ascended to the point where it approaches nearest to the sierra, and the southern boundary is to be completed by a drawing. The eastern boundary is the sierra; his western boundary the sea, and his northern line will be run by following up the Butano, as far as it is delineated on the diseño, which is supposed to be not far distant from the point where its course, in ascending it, deflects towards the south, and thence, in a straight line,- to the sierra. If, within these boundaries the quantity cannot be obtained, it will be the not very unusual case where the exterior boundaries contain less than the quantity supposed. If such should prove to be the fact, it is no doubt due to the extraordinary and unaccountable circumstance that the governor in this case appears to have granted twice the quantity of land solicited by the petitioner and delineated on his diseño, and in respect to which alone all the informes and reports were given. The survey herein directed will assume, substantially, the form of that certified by the surveyor-general to be in accordance with the opinion of this court heretofore rendered. [The final decree locating the claim was affirmed in 1 Wall. (68 U. S.) 582.] The surveyor-general, having made two plats since the opinion heretofore delivered, and the same having been informally submitted for approval, though not filed in the clerk’s office, and the interested parties having been informally heard in chambers, the above is intended as a supplemental opinion for the guidance of the surveyor-general, to be taken as a part and explanatory of the opinion heretofore delivered.. Anything contained in the order heretofore made, supposed to be in conflict with the views herein expressed, is to be taken as vacated and annulled.

WELLS, District Judge. A libel was filed against the steamboat Planter for a violation of the act of congress approved 7th July, 1838 [5 Stat. 304], “To provide for the better security of the lives of passengers on board of vessels propelled in whole or in part by steam.” The libel states, that “the attorney of the United States for the said district of Missouri, upon the information on oath of Peter V. Skillman, now here in the name and on behalf of the United States, and on behalf and to the use of the said Peter V. Skillman, gives the court to understand and be informed,” &c. An affidavit is filed with the libel by said Skillman, which sets forth that “in the name and on behalf of the United States of America, as well as in the name and on behalf of Peter V. Skill-man, who presents to the court here this information, now here giveth the court to understand and be informed,” &c. The second section of the above recited act provides that a fine of $500 shall be paid by the owners of any steam vessel which navigates the rivers, &c., without first obtaining a license therefor, “one-half for the use of the informer.” On filing the libel, no security for costs was given by the informer, and the owners, after filing their answer, moved the court for a rule on the informer to give security for costs. The United States appeared by the district attorney, and the informer by his proctor. The motion was opposed by the proctor of the informer. By the 8th section of the act of 28th February, 1799 (1 Stat. 626), it- is provided, that “if any informer on a penal statute, and to whom the penalty or any part thereof, if recovered, is directed to accrue, shall discontinue his suit or prosecution, or shall be non-suited in the same, or if upon trial judgment shall be rendered in favor of the defendant, unless such informer be an officer of the United States, he shall be alone liable to the clerks, marshals and attorneys for the fees of such prosecution; but if such informer be an officer whose duty it is to commence such prosecution, and the court shall certify there was reasonable ground for the same, then the United States shall be responsible for such fees.” See, also, the 5th section of the act of 8th May, 1792 (1 Stat. 277). The statute contemplates not only prosecutions in the name alone of the informer, but also those in the name of the United States to the use in whole or in part of an informer, “to whom the penalty, or any part thereof, if recovered, is directed to accrue. If such informer be an officer whose duty it is to commence'such prosecution, and the court shall certify there was reasonable ground for the same, then the United States shall be responsible for the same.” It will also be seen that in case of an informer who is not an officer (which is the case here), the United States are not liable, and therefore if the informer be not liable, no costs can be recovered, no matter how malicious or vexatious the prosecution may be. The Antelope, 12 Wheat. [25 U. S.] 559. “It is a general rule (says the supreme court) that no court can make a direct judgment or decree against the United States for costs and expenses in a suit to which the United States is a party, either on behalf of any suitor or any officer of the government. 1 think it appears from the above that an informer is liable, although the United States may be a party on the record, and also that the United States are not liable in this case. Can the court require him to give security for costs ? 2 Browne, Civ. & Adm. Law, 356. “If both parties appeared on the appointed day, each was to give security stipulatio, or satisfactio; the plaintiff that he would prosecute his suit and pay the costs, if he lost his cause; the defendant that he would continue in court, and abide the sentence of the judge, i. e. bail to the action.” This was the ancient civil law. The same practice prevails in the admiralty courts, on the instance side, or in other words in cases like the one under consideration. Id. 410, 411; Conk. Adm. 463, 464. “In a suit in rem both parties are actors.” Serg. Const. Law, 234. “All persons interested in the cause of action, may be joined as libelants.” Dunl. Adm. Prac. 95. In this case the informer has an interest, the same as that of the United States, as he receives half the penalty, that is ¡¡5250. It will he seen by reference to that part of the libel and affidavit above set forth, that he is made a party—a party on the record—and would be entitled to his part of the penalty when brought into the court by the marshal, and a decree or judgment would be given against him for costs if unsuccessful. His interest is separate and distinct from that of the United States, each being entitled to $250. But to settle all controversy in regard to the matter, and for the information of all concerned in similar suits, the court made a general rule requiring an informer to give security for the costs when the libel is filed, and also providing that if not given when the libel was filed, a rule might be made on him to give such security; and if not given, that he should not be further recognized by the court as informer, and that his name should be stricken out, and that he should receive no part of the fine or penalty. Under this rule he was required to give security for costs, and being in court and declining to give such security, the rule was enforced against him. It will be seen that this proceeding leaves the United States free' to prosecute either in the first instance, without an informer, or to prosecute after his name is stricken out. The necessity of establishing such rules and practice, and requiring security from informers, became manifest during the present term of the court. Eleven libels were filed against steam ferry boats for this term, by informers, without security for costs, and the boats arrested. No evidence was offered or alleged to exist, showing that they had been employed in any navigation other than that of ferries under licenses from state authority. In the case of U. S. v. The James Morrison [Case No. 15,465], this court held that ferry boats were not liable for the penalties imposed by the act of 1838, above cited; the case was taken by appeal to the circuit court, and there affirmed. The opinion of this court in the case of U. S. v. The James Morrison [supra] was published, as was also the decision of the circuit court, affirming its judgment The circuit court is the court of last resort in such case. In the face of these decisions these eleven suits were brought. The suit then proceeded in the name of the United States alone. The libel was for running the boat without a license. The answer of the owners set up and exhibited a license upon its face, good in all respects. It appeared in proof that the owners had executed their bond according to law, and applied for license after the enrollment of their boat, which license was made out on the books of the office, by the surveyor and inspector, signed, sealed, dated and numbered; and the same on a separate sheet, also signed, sealed, dated and numbered. When the owners called at the office afterwards, it appeared that there had been no account or payment of the hospital dues: that the account could not at that time be made out, as the boat had, a short time before, been sold and transferred to the present owners, who did not know how many hands had been employed by the former owners, nor how long the boat had run, both of which it was necessary to know and state in writing: that a person rendering a false account was subject to_a fine: that the former owners were absent, and therefore the information could not be obtained. Under these circumstances, the surveyor declined handing over the paper made out on the separate sheet, but gave the owners permission verbally to make the voyage they were prepared for; and on their return, the former owners being still absent, they made another voyage. For these two voyages this libel suit was commenced. On the day the writ was served, but after the service, the paper was delivered. The surveyor was not bound to gsant license until the hospital dues were paid. He states in his evidence that the enrollment and license were duly executed on the day they bear date, but the certificates were not delivered until afterwards; thus, treating the record in his office as the enrollment and license, and the papers delivered as evidence thereof. Be this as it may, he states positively, that the bond was given and the license was duly executed, was sealed, signed, dated and numbered; and the only question which can be raised is, “was delivery of the license necessary to give it validity?” He could grant a license before the hospital dues were paid, and the effect of which perhaps would be to make himself personally responsible for them; and this was his own understanding of the matter, as appears from the evidence of the chief clerk in his office. A deed is an instrument executed by a private citizen, and is or was formerly only known to be his act and deed, because he delivered it as such. He has no public seal by which it can be known, and anciently when this law was established, not one person in a hundred, perhaps, could write his name; and his private seal was the impression of his tooth, or some other impression equally unknown to the public. Delivery is therefore essential to give it validity; and it takes effect only from delivery. 2 Black. Comm. 306. It is not thus in regard to the acts of public officers, attested by public seals, and recorded in public records in public offices. Where is the law to make delivery essential to their validity? I confess I have never seen such law, and certainly none was produced or cited. In the case of Marbury v. Madison, 1 Cranch [5 U. S.] 177, 1 [Pet.] Cond. R. 273, the supreme court of the United States says: “But in all cases of letters patent, certain solemnities are required by law, which solemnities are the evidence of the validity of the instrument. A formal delivery to the person is not among them. In cases of commissions the sign manual of the president and the seal of the United States are those solemnities. This objection does not touch the case.” This was said by the court in answer to an objection, that delivery was essential to give validity to a commission. I have not been able to discover any difference which can be material in this respect, between a commission and a license; neither of them is a deed made by a private citizen, which can only be known to be his act, by his having delivered it as such. Both are acts of public officers, in their official capacity; both have their sign manual and public seals, and both are recorded in public records in public offices; both are letters patent, or of the nature of letters patent. Blackstone (2 Comm. 346) speaking of letters patent, says: “These grants, whether of lands, honors, liberties, franchises or aught besides, are contained in charters or letters patent, literal pat-entees, so called because they are not sealed up, but exposed to open view, with the great seal pendent at the bottom, and are usually directed or addressed by the king to all his subjects at large.” This is precisely the case with commissions and licenses. They are both grants. A commission grants the right to hold and discharge the duties of a certain office. A license grants authority to do a particular thing—in this case to carry on the coasting trade. They are both open letters addressed to everybody and under public seals. If an original license were lost, could a copy from the record be evidence? Certainly not, without proof that the original was delivered, if such delivery be necessary to give it validity; yet such copy is, I believe, uniformly received in evidence without such proof of delivery. Let us see the effect in the present case, of the doctrine that a license is invalid until delivered. It was not delivered until one month after it was executed. The bonds executed by the owners are conditional that the boat shall not, during the continuance of the license, be engaged in any trade whereby the revenue of the United States shall be defrauded, and shall not be used for any other vessel, or in any other employment than as specified in the license. They were not in force until the license took effect. If suit were brought for a breach during the month, the action would be defeated, by showing that the license had not been delivered. The license is granted for one year. If it have no validity untii delivered, that would be considered its date, and it would run one month into the next year. If it commenced at its date, but yet was inoperative, it would be a license for eleven months only. The law requires that a record should be made of the licenses granted. This record would be false, if the license did not take effect for one month after being granted and recorded. The law also requires the licenses to be numbered, commencing with the year, and copies sent to the register of the treasury. Both the numbers and copies sent would be false if the license had no validity until delivered. If a suit were brought for running without a license after the expiration of a year from its date, it might be defeated by showing that the license commenced only from delivery, and the year from that time had not expired. The effect would be to falsify the record of the surveyor’s office, and the records of the treasury department, and introduce confusion and uncertainty into all the public business relating to our commerce and navigation. If, on the other hand, the hospital dues be not paid, the surveyor is not bound to grant the license; if, however, he should do so, he may, perhaps, become responsible for them, but the non-payment would not avoid the license, and the owners would still be held liable for them. For the above reasons, the court orders and decrees that the libel be dismissed, the bond given by the owners canceled, and the informer pay costs up to the time when his name was stricken out as informer.

PER CURIAM: Petitioner Lonnie Dennis, proceeding pro se, seeks relief from his sentence and parole restrictions via a writ of mandamus pursuant to 28 U.S.C. § 1361. Petitioner alleges that Respondents, the Federal Bureau of Prisons and the U.S. Parole Commission, incorrectly computed his sentence by failing to account for good credits earned and that his continued custody via parole is unlawful. We disagree and affirm the judgment of the district court. BACKGROUND Dennis was convicted of armed bank robbery and sentenced to 45 years’ imprisonment in 1978. After earning good time credits, Dennis was paroled in 1989. He violated his parole and was re-incarcerated. He was paroled again in 2000 and 2003, and each time violated his parole. He is currently on parole. In June 1999, Dennis filed a petition for writ of habeas corpus, alleging that his release date had been improperly calculated. The court dismissed the petition for failure to exhaust remedies. Dennis v. United States Parole Comm’n, No. 1:99-CV-1505-WBH (N.D.Ga.1999) (“Dennis I”). In 2003, Dennis filed a civil action seeking an injunction ordering the parole commission to apply his good time credits to reduce his sentence so as to remove his parole restrictions. See Dennis v. Ashcroft, No. 1:03-CV-1482-CC (N.D.Ga.2004) (“Dennis II”). The court construed his action as a petition for writ of habeas corpus, found that Dennis had again failed to exhaust administrative remedies, and dismissed the claim for lack of jurisdiction. Id. The court found, alternatively, that Dennis would not be entitled to relief on the merits because the good credits earned during incarceration were forfeited upon his acceptance of parole. Id. For a third time, in November 2005, Dennis filed suit alleging that the Bureau of Prisons and the Parole Commission •violated his constitutional rights by failing to account for his good time credits when computing his sentence. See Dennis v. Gonzales, No. 1:05-CV-2905-CC-CCH (N.D.Ga.2006) (“Dennis III”). Dennis’ claim stated that the forfeiture of credits violated Title VII and the U.S. Constitution. Id. The court, adopting the recommendation of the Magistrate Judge, dismissed Dennis’ Title VII claim because, inter alia, Dennis was not an employee. Id. The court construed Dennis’ assertions of constitutional violations as claims brought pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Id. The court dis missed these claims because Dennis had failed to exhaust the Bureau of Prison’s administrative procedures for relief, thus depriving the court of jurisdiction. Id. The court also found that, if it had jurisdiction, Dennis’ claims would fail because the good credits Dennis earned while incarcerated were extinguished when he was released on parole. Id. Dennis filed the present action in October 2007. Under the caption of “mandamus relief,” Dennis here seeks the same relief he sought in Dennis I, Dennis II, and Dennis III: a recalculation of his sentence based on his earned good-time credits. In addition, Dennis seeks an order requiring Respondents to produce a record of the correct computation of his sentence. The district court construed Dennis’ request for relief from the allegedly improper sentence as a petition for habeas relief under 28 U.S.C. § 2241. The court then concluded that Dennis was barred from seeking such relief as he had litigated the same issue on three previous occasions and had failed to obtain authorization for filing a successive habeas petition pursuant to 28 U.S.C § 2244. The court dismissed the action for lack of jurisdiction. As to Dennis’s request for an order- requiring Respondents to produce a complete and correct computation of his sentence, the court denied mandamus relief, finding that Dennis had an adequate alternative remedy. The Bureau of Prisons had provided Dennis with an address to which he could write to obtain those records, and the court found that Dennis had not proven that this remedy would be inadequate. Dennis timely appealed. STANDARD OF REVIEW This court reviews de novo the availability of habeas relief under § 2241. Cook v. Wiley, 208 F.3d 1314, 1317 (11th Cir.2000). We review the denial of a petition for a writ of mandamus for an abuse of discretion. United States v. Denson, 603 F.2d 1143, 1146 (5th Cir.1979). DISCUSSION The district court properly denied mandamus relief on Dennis’ request for a statement reflecting a complete and correct computation of his sentence. “[M]andamus is an extraordinary remedy which should be utilized only in the clearest and most compelling of cases.” Carter v. Seamans, 411 F.2d 767, 773 (5th Cir.1969). “Mandamus relief is only appropriate when: (1) the plaintiff has a clear right to the relief requested; (2) the defendant has a clear duty to act; and (3) no other adequate remedy [is] available.” Cash v. Barnhart, 327 F.3d 1252, 1258 (11th Cir.2003) (quotation omitted). The petitioner carries the burden of showing that its right to the writ of mandamus is clear and indisputable. Carpenter v. Mohawk Industries, Inc., 541 F.3d 1048, 1055 (11th Cir.2008). Dennis has not demonstrated that he has no adequate alternative remedy for obtaining a statement of the correct computation of his sentence in light of the Bureau of Prison’s provision of a name and address whereby the Bureau suggested he might obtain such a statement. By failing to prove that no adequate alternative remedy is available, Dennis has not established a right to mandamus relief. The court also properly construed Dennis’ petition for relief from his sentence as a § 2241 habeas petition. Federal courts “have an obligation to look behind the label of a motion filed by a pro se inmate and determine whether the motion is, in effect, cognizable under a different remedial framework.” United States v. Jordan, 915 F.2d 622, 624-25 (11th Cir.1990). Dennis seeks relief from his sentence and parole restrictions. Section 2241 is the appropriate avenue to challenge decisions of the Federal Parole Commission and the execution of a sentence. Hajduk v. United States, 764 F.2d 795, 796 (11th Cir.1985); Antonelli v. Warden, U.S.P. Atlanta, 542 F.3d 1348, 1351 (11th Cir.2008). We agree with the district court that successive habeas petitions are procedurally barred unless the petitioner complies with certain procedural requirements that were not followed here. We, however, disagree that Dennis’ petition is in fact successive. A habeas petition dismissed without prejudice has not been decided on the merits and is, therefore, not subject to the limitations governing second or successive petitions. Stewart v. Martinez-Villareal, 523 U.S. 637, 643-44, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998). A habeas petition was not decided on the merits where it was dismissed without prejudice for failure to exhaust remedies. Walker v. Crosby, 341 F.3d 1240, 1245 n. 4 (11th Cir.2003); see also Maharaj v. Sec’y for Dept. of Corrs., 304 F.3d 1345, 1349 (11th Cir.2002). Because Dennis’ prior petitions were dismissed for failure to exhaust remedies, they do not now bar his present petition as second and successive. The government argues that Dennis’ petition is barred by collateral estoppel because the issue of his entitlement to earned good credits was litigated in Dennis I, II, and III. We disagree. Collateral estoppel bars the “relitigation of particular issues which were actually litigated and decided in a prior suit.” Citibank, N.A. v. Data Lease Fin. Corp., 904 F.2d 1498, 1501 (11th Cir.1990). Collateral estoppel applies where “(1) the issue was identical in both the prior and current action; (2) the issue was actually litigated in the prior action; (3) the determination of the issue was critical and necessary to the judgment in the prior action; and (4) the party against whom the earlier decision is asserted had a full and fair opportunity to litigate the issue in the earlier proceeding.” Barger v. City of Cartersville, Ga., 348 F.3d 1289, 1293 (11th Cir.2003). Although the issue raised here is identical to the issue raised in Dennis’ prior suits, the prior courts’ rulings on this issue were alternative holdings and were not “critical and necessary to the judgment”; as such, those prior rulings do not bar relitigation of this question. See A.J. Taft Coal Co., Inc. v. Connors, 829 F.2d 1577, 1580-81 (11th Cir.1987) (reversing the district court’s decision to apply collateral estoppel to an alternative holding). Dennis’ claim, however, fails on the merits. In his petition, Dennis requests relief from his sentence and parole restrictions. Dennis asserts that he was improperly denied the benefit of good-time credits that he earned while incarcerated, prior to his first release from prison on parole. The Parole Commission refused to apply those good time credits because Dennis forfeited when he accepted parole. Federal Regulations state that [o]nce an offender is conditionally released from imprisonment, either by parole or mandatory release, the good time earned during that period of imprisonment is of no further effect either to shorten the period of supervision or to shorten the period of imprisonment which the offender may be required to serve for violation of parole or mandatory release. 28 C.F.R. § 2.35(b). Thus, by accepting parole, Dennis extinguished his earned good-time credits, and these credits have no further effect on his sentence or his parole restrictions. This court upheld § 2.35(b) in Booth v. United States, 996 F.2d 1171, 1173 (11th Cir.1993), and there is, therefore, no merit to Dennis’ claims that he has been unlawfully deprived of his good time credits. CONCLUSION For the foregoing reasons, we AFFIRM the dismissal of Dennis’ claims. . The Magistrate Judge also noted that Dennis’ petition rested on the same grounds as were alleged in his previous habeas petition. . Fifth Circuit decisions rendered prior to September 30, 1981 are binding precedent on this court. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981). . “We may affirm the district court's judgment on any ground that appears in the record, whether or not that ground was relied upon or even considered by the court below.’’ Powers v. United States, 996 F.2d 1121, 1123—24 (11th Cir.1993).

PER CURIAM: Gloria Barfield appeals the district court’s grant of summary judgment to Kristen Widmer and the Louisiana Attorney General’s Office in her § 1983 suit claiming that Widmer violated her Fourth Amendment right to be free from unlawful or illegal arrest. Because Widmer’s reasonable investigation of Barfield established probable cause to arrest her, Wid-mer is entitled to qualified immunity. Therefore, we affirm the district court’s grant of summary judgment. I Gloria Barfield served as the Chief Executive Officer of the G.B. Cooley Intermediate Care Facility for the Mentally Retarded (Cooley) in West Monroe, Louisiana from 2003 to 2004. In September 2003, “J.W.,” a fifteen-year resident of the facility who suffered from severe retardation, schizophrenia, and a seizure disorder, was transferred from the Cooley main campus to an off-campus community home in a less restrictive environment. At the community home, J.W. attempted suicide, attempted to jump from a moving van, stabbed himself in the abdomen with a knife and fork, broke windows, and broke into a neighbor’s home causing the neighbor to draw a gun on him. As a result of these incidents, the Cooley staff held several meetings from October 2003 through January 2004 discussing whether J.W. should be moved back to the Cooley main campus or whether he should stay at the community home. At these meetings, the staff, including Barfield, discussed the problems J.W. was having adjusting to the new environment and his need for one-on-one supervision if he remained in the community home. The staff ultimately decided to leave J.W. in the community home with one-on-one supervision. However, J.W. never received this supervision, his problems continued, and he was finally moved back to the main campus in January 2004. In September 2004, the Louisiana Department of Health and Hospitals (LDHH) conducted a survey of Cooley to determine if it was in compliance with federal and state standards. Though J.W.’s care was not the sole focus of the survey, at the survey’s completion, the LDHH determined that Cooley failed to meet one of the Louisiana Medicaid Program’s conditions of participation, “Client Protections,” by placing J.W. in an unsafe environment, not providing sufficient staff, and not taking corrective action in a timely manner. The LDHH also provided its report to the Louisiana Medicaid Fraud Control Unit (MFCU) of the Louisiana Department of Justice, who assigned Widmer, a special agent, to investigate the possible abuse and/or neglect of J.W. Widmer did not know or have any connection with Barfield at the time. As part of her investigation, Widmer: (1) reviewed the LDHH survey; (2) reviewed J.W.’s medical records and other records provided by Barfield and Cooley; (3) interviewed witnesses, including Cooley employees; (4) reviewed her findings with her supervisors—two assistant attorneys general who are experienced prosecutors; (5) prepared arrest and search warrants; and (6) presented the warrants to Louisiana District Judge Carl Sharp, who signed them after reviewing Widmer’s arrest affidavit. In all, six Cooley employees, including Barfield, were arrested as a result of Wid-mer’s investigation. Barfield was charged with cruelty to the infirm under Louisiana Revised Statutes § 14:93.3. The Ouachita Parish District Attorney’s Office later declined to pursue the charges against Bar-field after conducting its own investigation. In November 2005, Barfield filed this action under 42 U.S.C. § 1983 in a Louisiana state court, alleging that Widmer had violated her constitutional rights by intentionally filing a frivolous arrest affidavit and that the Attorney General was vicariously liable for Widmer’s actions. After removing the case to federal court, the defendants moved for summary judgment, asserting the defense of qualified immuni ty. The district court granted their motion, which Barfield now appeals. II This court reviews a district court’s grant of a motion for summary judgment on the basis of qualified immunity in a § 1988 suit de novo. Although nominally an affirmative defense, the plaintiff has the burden to negate the assertion of qualified immunity once properly raised. Claims of qualified immunity require a two-step analysis. First, we generally determine whether, viewing the summary judgment evidence in the light most favorable to the plaintiff, the defendant violated the plaintiffs constitutional rights. Only if such a violation occurred do we proceed to the second step, which is to determine whether the defendant’s actions were objectively unreasonable in light of clearly established law at the time of the conduct in question. “To make this determination, the court applies an objective standard based on the viewpoint of a reasonable official in light of the information then available to the defendant and the law that was clearly established at the time of the defendant’s actions.” Accordingly, we first determine whether Widmer violated Barfield’s constitutional rights. Barfield argues that Widmer violated her Fourth Amendment rights by causing her to be arrested without probable cause and by failing to uncover readily available exculpatory evidence in her investigation. Probable cause exists when the facts and circumstances within an officer’s personal knowledge are “sufficient to occasion a person of reasonable prudence to believe an offense has been committed.” “Moreover, probable cause is to be determined on the basis of the facts available to the officers at the time, without reference to whether the evidence ultimately proved to be reliable.” An officer who “reasonably but mistakenly conclude[s] that probable cause is present” is still entitled to qualified immunity. Because Widmer performed a reasonable investigation and uncovered enough facts to reasonably believe Barfield violated Louisiana Revised Statutes § 14:93.3, we agree with the district court that Wid-mer had probable cause to seek a warrant for Barfield’s arrest for cruelty to the in-firmed. Section 14:93.3 defines “cruelty to the infirmed” as “the intentional or criminally negligent mistreatment or neglect by any person, including a caregiver, whereby unjustifiable pain, malnourishment, or suffering is caused to the infirmed, a disabled adult, or an aged person, including but not limited to a person who is a resident of a ... mental retardation facility.” Wid-mer’s investigation revealed that Barfield knew about J.W.’s violent incidents and the trouble he was having adjusting to the new environment. The investigation also revealed that Barfield refused to move him back to the main campus and failed to ensure that he received one-on-one supervision, both of which were steps recommended by J.W.’s care team. As a result, J.W. experienced more violent incidents that resulted in harm to himself. These facts, which Widmer documented in her arrest affidavit, provide enough basis for a “person of reasonable prudence” to believe that Barfield violated § 14:93.3. Barfield contends, however, that Wid-mer lacked probable cause because documents she reviewed in her investigation contained evidence indicating that Barfield was innocent. First, Barfield argues that two memoranda from Florence Fields, a Qualified Mental Retardation Professional working with J.W., showed that Barfield was led to believe that J.W. was receiving one-on-one supervision. Barfield contends that she could not have been criminally negligent if she reasonably believed that J.W. was receiving the supervision that he needed. However, neither of these memos undermine the reasonableness of Widmer’s probable cause determination. The first memo from Fields related to a meeting on October 8, 2003 in which the Cooley staff discussed J.W.’s situation and whether he should be moved back to the main campus. According to the memo, Barfield said that J.W. should remain at the community home, but initially suggested giving him one-on-one care. The somewhat ambiguous memo then states that Barfield later changed her mind: But by the end of the day, there was not to be an [sic] one to one we cannot afford one we were told. Mrs. Barfield change [sic] her mind due to the Program managers present assured her they had it taken care of one Program Manager offered a staff to assist the other program Manager, but that never occurred, [sic] This memo alone does not clearly exculpate Barfield or defeat Widmer’s probable cause determination. Though it suggests that Barfield was told that a staff member “had it taken care of,” the memo states that it never actually occurred. The second memo discusses a meeting held on November 25, 2003 after J.W. experienced more violent incidents. The memo indicates that Barfield declined to approve a one-on-one personnel assignment for J.W. without approval from accounting. A handwritten addition to the note states that “[t]here was a meeting held to discuss the problem w/ [J.W.] at the time the program managers stated they would provide support. Therefore, CEO assume it was aright [sic].” Barfield points to this addition as showing that, again, Barfield was told that J.W. was being taken care of appropriately. However, the handwritten note is ambiguous as to exactly what Barfield knew. It is unclear whether the note is referring to what Barfield was told at the October 8 meeting or the November 25 meeting, since the note appears to be referring to a different meeting from the one that is the subject of the memo. Either way, this ambiguous statement is not enough to defeat Wid-mer’s probable cause determination, given the other evidence Widmer considered. In addition to the two memos from Fields, Barfield points to the minutes from two management meetings from November 25, 2003 and December 2, 2003 that she claims prove that she was not negligent because she was told that J.W. was receiving the appropriate care. The November 25 meeting minutes stated that “[s]everal staff agreed that there is a need [for one-on-one staffing] and that one staff [sic] is working with J.W.” The December 2 meeting minutes stated that “Ida acknowledged that J.W. requires constant care, which he does have now.” Though the minutes from these meetings suggest that Barfield was told that J.W. was receiving adequate care, there is no showing in the record that Widmer had seen or knew about these minutes. Thus, these minutes do not undermine the reasonableness of Widmer’s probable cause determination based on the evidence uncovered in her investigation. Barfield also argues that Widmer should have known, based on Cooley’s transfer policy, that the admissions team, not Bar-field, transferred J.W. to the community home. The transfer policy states that, for a decision to discharge or transfer a client, an interdisciplinary team would conference to develop a recommendation as to whether the client should be discharged or transferred. The “admission, transfer, discharge committee” would then decide whether to approve that decision. Wid-mer’s investigation, which included interviews with individuals closely involved in J.W.’s care, indicated that, contrary to Cooley’s policies, Barfield held the ultimate power to approve J.W.’s transfer back to the main campus but refused to do so. Widmer was reasonable in relying on this information and the existence of the transfer policy does not undermine the probable cause determination. Finally, Barfield argues that Widmer’s failure to uncover exculpatory evidence that was readily available to her violated Barfield’s constitutional rights. Barfield cites two cases, Evett v. Deep East Texas Regional Narcotics Trafficking Task Force and Vance v. Nunnery, arguing that an investigating officer must obtain readily available exculpatory evidence and provide it in her arrest affidavit. Barfield asserts that Widmer failed to interview more than five individuals in her investigation and should have interviewed a majority of the members of J.W.’s admissions team—who would have revealed that decisions relating to J.W. were made by a team of professionals rather than just Bar-field. However, Evett and Vance do not require that an officer perform a perfect investigation that uncovers all readily available exculpatory evidence. Rather, they stand for the basic premise that an officer must have probable cause to make an arrest based on an investigation that was reasonable under the circumstances. Widmer had probable cause to seek a warrant for Barfield’s arrest based on her reasonable investigation. Widmer did not know Barfield prior to the investigation and there is no indication that she bore any malice towards Barfield. In her investigation, she reviewed the LDHH survey and its supporting documentation as well as documentation about J.W. and Cooley’s policies and procedures. She also interviewed a number of witnesses, including J.W.’s aunt, current and former employees of Cooley, J.W.’s psychological associate, and one of J.W.’s Qualified Mental Retardation Professionals. After completing her investigation, Widmer reviewed her findings with two experienced assistant attorneys general before preparing the arrest and search warrant affidavits that were presented to Judge Sharp. These steps were reasonable under the circumstances. * * * We AFFIRM the district court’s grant of summary judgment. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . Freeman v. Gore, 483 F.3d 404, 410 (5th Cir.2007). . Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir.2008). . Freeman, 483 F.3d at 410. . Id. . Id. at 411. . Id. . Bigford v. Taylor, 834 F.2d 1213, 1218 (5th Cir.1988). . Id. . Mangieri v. Clifton, 29 F.3d 1012, 1017 (5th Cir.1994) (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)). . La.Rev.Stat. Ann. § 14:93.3 (2008). . 330 F.3d 681 (5th Cir.2003). . 137 F.3d 270 (5th Cir.1998). . See Vance, 137 F.3d at 276-77 (holding that an officer lacked probable cause to arrest a suspect for a burglary that he had no evidence actually occurred and that a reasonable officer would have continued his investigation); Evett, 330 F.3dat 689 (holding that an officer lacked probable cause when he based the arrest on a "feeling" formed after receiving information from an "unsubstantiated source”).

THE COURT said, where a person is in custody under the state authority, this court has no power to take the accused from such custody; nor has a state court power to remove by a habeas corpus a defendant from the custody of a court of the United States. A habeas corpus should be applied for to the state court with the view of bringing the defendants, by the order of that court, before this court, to answer the charges against them here; after which they can be remanded to the state court. Or, if the defendants shall be first tried in the state court, this court can direct a capias to the marshal to arrest them, so soon as they shall be discharged from their present imprisonment. Under the circumstances, no step will be taken against the bail in this court. After the release of the defendants from state custody, the bail here will be liable for their appearance. Their recognizance will be continued.

PER CURIAM: Leica Geosystems, AG appeals the summary judgment in favor of Jefferson County, Alabama, and members of the Jefferson County Commission, and against its complaint of breach of contract and breach of warranty of the letter of credit. We affirm. I. BACKGROUND In 2001, Jefferson County submitted to potential vendors a request for bids to upgrade the computer software for the Board of Equalization and the Tax Assessor. The request required bidders to be solvent and to supply a performance bond equal to the value of the contract. NovaL-IS submitted a low bid in the hope that it would win the project, which it could use to increase its client base and cultivate future business. Because NovaLIS could not provide the required performance bond, NovaLIS requested that Jefferson County instead accept a letter of credit. Jefferson County awarded a portion of the contract to NovaLIS, and Jefferson County agreed to accept a letter of credit from NovaLIS. The Board of Directors of NovaLIS requested that its minority shareholder, Leica, fund the letter of credit. Leica agreed and obtained a standby letter of credit of 1,616,000 dollars that listed Leica as the applicant and Jefferson County as the beneficiary. In April 2002, NovaLIS and Jefferson County executed an integrated tax system agreement. The agreement provided that NovaLIS would develop, deliver, and install the software, and provide technical support and training, and Jefferson County would pay for those goods and services and retain rights to the software. Section 5.4 of the agreement stated that Jefferson County agreed to accept a letter of credit in lieu of a performance bond; explained that the purpose of the letter of credit was to “mitigatfe] Jefferson County's actual losses”; stated that Jefferson County would remit to NovaLIS the difference between the amount of the letter of credit and the actual loss; and outlined the terms of the letter of credit. The section stated that the letter of credit would “be attached hereto as schedule D.” Schedule D stated that “The Letter of Credit applied for by Leica Geosystems AG, of Heerbrugg, Switzerland, executed in favour of Jefferson County on [date omitted from the schedule], 2002 is incorporated herein by reference without attaching a copy of the LOC herein, and each party acknowledges having received a copy of the Letter of Credit.” The contract also included a non-transferability clause and prohibited assignment of the contract “without the prior written consent of the other party.” The agreement also denied both parties the “authority or power to bind or contract in the name of or to create any liability against the other party in any way for any purpose.” NovaLIS missed several deadlines and failed to complete the project, but Jefferson County paid NovaLIS over 1.4 million dollars. In March 2005, Jefferson County sent a letter to NovaLIS terminating their contract because of the “breaches or defaults of material provisions” of the agreement by NovaLIS. NovaLIS attempted to deliver a workable product in September and November 2005, but Jefferson County alleged that the software did not function properly. In October 2005, Leica sold its minority interest in NovaLIS to ESRI Canada Ltd. In a share purchase agreement executed by NovaLIS, Leica, and ESRI, NovaLIS agreed to hold in trust, and waive “any right, title or interest” in, any money remitted by Jefferson County. In November 2005, NovaLIS filed a petition under the Bankruptcy and Insolvency Act of Canada. In January 2006, Jefferson County drew the entire amount of the letter of credit. NovaLIS later sold its assets and intellectual property and notified Jefferson County that it was terminating the agreement. Leica notified Jefferson County that it sought an accounting and reimbursement under the letter of credit. Jefferson County denied the request. Leica filed a complaint that Jefferson County failed to account for and remit the difference between the amount of the letter of credit and its actual loss. Leica alleged that the failure to remit breached section 5.4 of the agreement and breached the warranty by Jefferson County as the beneficiary of the letter of credit, Ala. Code § T—5—110(a)(2). Leica moved for summary judgment. Jefferson County and the members of the Jefferson County Commission also moved for summary judgment and argued that Leica lacked standing to sue for an alleged violation of the agreement. Leica responded that it had standing as a third-party beneficiary of the agreement and as the applicant for the letter of credit. The district court granted summary judgment in favor of Jefferson County. II. STANDARD OF REVIEW We review a summary judgment de novo and view the evidence in the light most favorable to the party that opposes the motion. Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1230 (11th Cir.2006). Summary judgment should be entered where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). III. DISCUSSION Leica challenges two aspects of the summary judgment in favor of Jefferson County. Leica argues that it may maintain a claim for breach of warranty. Leica also argues that it was a third-party beneficiary to the agreement between Jefferson County and NovaLIS. These arguments fail. Leica cannot maintain a claim against Jefferson County for breach of warranty of the letter of credit. An applicant for a letter of credit may bring a cause of action for a breach of warranty against the beneficiary if it draws on the letter of credit “in violation of its authorization.” Ala.Code § 7-5-110(a)(2) cmt. n. 2. When a beneficiary draws on a letter of credit, it “warrants ... to the applicant that the drawing does not violate any agreement between the applicant and beneficiary or any other agreement intended by them to be augmented by the letter of credit.” Ala.Code § 7-5-110(a)(2). The warranty guarantees “that the beneficiary has performed all the acts expressly and implicitly necessary under any underlying agreement to entitle [it] to honor” the letter of credit. Id. cmt. n. 2. Leica argues that Jefferson County violated section 5.4 of the agreement because it failed to account for and remit the difference between the amount of the letter of credit and its actual loss, but Leica focuses incorrectly on conduct expected of Jefferson County after it drew on the letter of credit. The requirement that Jefferson County remit payment to NovaLIS did not “create[ ] a condition for honoring a draft.” Prin-gle-Associated Mortgage Corp. v. S. Nat’l Bank of Hattiesburg, Miss., 571 F.2d 871, 874 (5th Cir.1978) (ruling that a contract between the beneficiary, a mortgage company, and the applicants, developers of an apartment complex, was irrelevant to the interpretation of and the duty of the issuer to honor the letter of credit). Leica failed to argue or present substantial evidence that Jefferson County “drew in violation of its authorization.” Ala.Code § 7-5-110 cmt. n. 2. Leica also is not a third-party beneficiary of the agreement between Jefferson County and NovaLIS. The agreement states that it “shall be construed in accordance with the law of the State of Alabama.” Under Alabama law, “the party claiming status as a third-party beneficiary must establish that the contracting parties intended, at the time the contract was created, to bestow a direct benefit upon the third party.” Airlines Reporting Corp. v. Higginbotham, 643 So.2d 952, 954 (Ala.1994); see H.R.H. Metals, Inc. v. Miller, 833 So.2d 18, 24 (Ala.2002). “In determining the parties’ intent, [a court] must first look to the contract itself, because, while ‘the intention of the parties controls in construing a written contract,’ ‘the intention of the parties is to be derived from the contract itself, where the language is plain and unambiguous.’” Airlines Reporting Corp., 643 So.2d at 954 (quoting Loerch v. Nat’l Bank of Commerce of Birmingham, 624 So.2d 552, 553 (Ala.1993)). Only when the contract is ambiguous does it “become necessary to consider the surrounding circumstances and the construction the parties gave the language in order to determine the intent of the contracting parties.” H.R.H. Metals, Inc., 833 So.2d at 24 (citing Mann v. GTE Mobilnet of Birmingham, Inc., 730 So.2d 150 (Ala. 1999)). Section 5.4 of the agreement is not ambiguous and does not confer any direct benefit on Leica. Section 5.4 required No-vaLIS to provide a letter of credit on which Jefferson County was allowed to draw “upon a failure of NovaLIS to fulfill a material condition or upon termination of [the] Agreement ... where NovaLIS is the defaulting party.” If it drew on the letter of credit, Jefferson County was required to “promptly remit the difference between” the amount of the letter of credit and its actual loss “to NovaLIS.” Section 5.4 provided for the letter of credit to “be attached hereto as schedule D[J” but did not state that Leica had any rights as applicant for the letter of credit. The plain language of the contract does not establish that Leica is a third-party beneficiary. Even if the contract were ambiguous and we considered, as Leica requests, the circumstances surrounding the formation of the contract, those circumstances do not establish that Leica is a third-party beneficiary of the agreement. Leica argues that NovaLIS and Jefferson County “knew and intended that Leica would benefit from the parties’ performance of the Contract,” but the role Leica served did not alter the fundamental purpose of the agreement to engage in a mutually beneficial business transaction. Jefferson County contracted for NovaLIS to devise and implement software and, in return, NovaLIS enlarged its client base. The agreement at most would have benefited Leica indirectly. If No-vaLIS had successfully completed the project, it might have parlayed that experience into future business and indirectly increased the value of the stock held by Leica. Leica argues that it wrote a letter to Jefferson County that stated it “was backing NovaLIS’s performance,” but the letter did not convey that Leica was reliant on or would obtain any direct rights as a result of the contract. See Beverly v. Macy, 702 F.2d 931, 940, 941 (11th Cir.1983) (determining the intent of the parties from the “circumstances surrounding its formation” and “reliance on the part of the putative third-party beneficiary”). Leica wrote the letter to assure Jefferson County that NovaLIS was solvent; as stated by a representative of Leica, “[t]he intent of the letter was to say that NovaLIS, being a small company, is nevertheless owned through shareholding by some bigger companies ... [s]uch as Leica.” IV. CONCLUSION The summary judgment in favor of Jefferson County is AFFIRMED.

PER CURIAM: Anthony Lavar Hagwood appeals the district court’s order granting his motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Hagwood, No. 4:04-cr-70014-jlk-1 (W.D.Va. filed Mar. 27, 2008 & entered Mar. 28, 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.

MEMORANDUM Lead petitioner Octavio Hernandez Ramirez, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir.2008), and we deny in part and dismiss in part the petition for review. The BIA did not abuse its discretion in denying Hernandez Ramirez’s second motion to reopen. See 8 C.F.R. § 1003.2(c)(2) (an alien who is subject to a final order of removal is generally limited to filing one motion to reopen). To the extent Hernandez Ramirez challenges the BIA’s August 4, 2005 and September 30, 2005 orders, we lack jurisdiction because this petition is not timely as to those orders. See 8 U.S.C. § 1252(b)(1); Singh v. INS, 315 F.3d 1186, 1188 (9th Cir.2003). PETITION FOR REVIEW DENIED in part; DISMISSED in part. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

PER CURIAM. Loren Longie challenges the district court’s order of garnishment, which was entered to help satisfy Longie’s criminal restitution debt. On appeal, he argues that a tribal disbursement was not subject to collection by the government because it constituted “other income” under 26 U.S.C. § 6334(a)(9). After careful review, we conclude that section 6334(a)(9) does not apply in this case. See 18 U.S.C. § 3613(a)(1), (f) (United States may enforce judgment imposing fine using procedures for enforcement of civil judgment under federal law; notwithstanding any other federal law, judgment imposing fíne may be enforced against all property or rights to property of person fined, except that property exempt from levy for taxes pursuant to § 6334(a)(1)—(8), (10), and (12) shall be exempt from enforcement of judgment; in accordance with 18 U.S.C. § 3664(m)(l)(A), all provisions of this section are available to United States for enforcement of order of restitution). Accordingly, we affirm. See 8th Cir. R. 47B. We deny appellee’s pending motion to supplement the record on appeal. . The Honorable Ralph Erickson, United States District Judge for the District of North Dakota.

LOWELL, District Judge. Since this case was before me on demurrer the parties have by consent reformed the pleadings, and the claimant has filed a second demurrer, which raises the single question whether section 57 of the statute of July 20, 1868 (15 Stat. 150), does not impose a penalty or punishment for a violation of section 25. In my former decision [Case No. 15.889] I expressed the opinion that there was no penalty imposed for a violation of section 25, and three district judges have expressed a like opinion. U. S. v. One Rectifying Establishment [Id. 15.952]; U. S. v. Thirty-Seven Barrels, etc. [Id. 16,466]; U. S. v. One Hundred and Thirty-Three Casks [Id. 15,940], And this was agreed to be the case by both counsel at the former hearing. But it seems that section 57 contains a clause which, taken literally, is broad enough to reach every neglect to brand or stamp or cause to be branded or stamped any cask or package of more than five gallons. It is: “And all distilled spirits found after thirty days from the time this act takes effect in any cask or package containing more than five gallons without having thereon each mark and stamp required therefor by this act shall be forfeited to the United States.” It is argued by the district attorney that the meaning is to punish merely the violation of this section, and that “act” in the latter part of the clause should read “section;” and such was the opinion of Judge Ballard in one of the cases above referred to. In none of the other decisions that I have seen has this section been construed or cited, and it is not clear that the point was fully argued in that case. There is great force in the argument from proximity of place and context; all the remainder of that section refers to spirits already distilled and held for sale at the date of the passage of the act, and this forfeiture is interposed in the middle of a sentence of which the former part relates only to such spirits. It was very frankly admitted by the district attorney that a great many forfeitures have been adjudged here on informations framed under the broad construction of this clause in defaulted cases; and it never occurred to me, in reading or hearing these informations, as I always do in such cases, that there ought to be an allegation that the spirits were in existence and owned by some persons who intended to sell them at the time of the passage of the act, which would be necessary to bring them within the more restricted construction. Of course, the government must abide by the same interpretation when it will relieve the goods as when it will forfeit them; but I understand their position now to be, that any informations that may have been brought against unstamped spirits by virtue of this clause were ill-advised excepting where the spirits were held for sale at the date of the passage of the act; and as this is the first time the point has been distinctly raised, they certainly ought not to be precluded from taking their present position. Upon the best consideration I can give the question. I am of opinion that the forfeiture is general and not to be limited by the context. The language is unambiguous that all distilled spirits found in any cask, etc., .not having each mark and stamp required by the act, shall be forfeited. There appears no reason of justice or policy for confining the meaning of “act” to “section,” but rather the contrary. It is proper and usual that the goods which are not stamped should be forfeited, and it is so provided in respect to cigars and tobacco by sections 70 and 90 of this act; but there is no general provision forfeiting unstamped spirits unless it be the clause now under consideration. To limit the meaning will not only require us to read “act,” as if it were “section,” but to disregard “each” because there is-but one particular stamp required by this section, and this would naturally be mentioned as “the stamp required by this section,” or by some such expression. I consider the more reasonable construction to be that congress having by this section put all spirits on an equality in this respect, namely, that all must be stamped and branded whether made before the statute was passed or afterwards, intended to say that all spirits which were not properly stamped and marked should be • forfeited, whatever the previous history of the spirits might be, or whatever the special marks or stamps which ought to be put upon them. I must, therefore, sustain the demurrer on both counts and dismiss the information, leaving the United States to their remedy by writ of error.

OPINION SAND, District Judge. In this multidistrict ease consolidated before this Court for pre-trial matters, investors in Gas Reclamation, Inc. (“GRI”) bring suit for violations of federal securities laws, the Racketeer Influenced and Corrupt Organizations Act, common law and various state statutes. We assume familiarity with the general factual background of the claims asserted and with this Court’s prior decisions. See In re Gas Reclamtion, Inc. Sec. Litig., 733 F.Supp. 713 (S.D. N.Y.1990); In re Gas Reclamation, Inc. Sec. Litig., [1987 Transfer Binder] Fed.Sec. L.Rep. (CCH) ¶ 93,731, 1988 WL 45632 (S.D.N.Y. Apr. 18, 1988); In re Gas Reclamation, Inc. Sec. Litig., 659 F.Supp. 493 (S.D.N.Y.1987). Before the Court today are three separate groups of motions, and we address each in turn. I. Banks’ Motions for Partial Summary Judgment The Connecticut National Bank (“CNB”), Ensign Bank FSB (“Ensign”), Morris County Savings Bank (“Morris”) and Privat-banken A/S (“Privatbanken) (collectively, the “Banks”) move for partial summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, on their cross-claims against Northwestern National Insurance Company, of Milwaukee, Wisconsin (“Northwestern”) for payment on various surety bonds. We grant their motion. The Banks hold a group of promissory notes (“Notes”) made at various dates between April and October 1984 by investors in Gas Reclamation, Inc. (“GRI”) to finance their purchases of gas reclamation units. Each Note requires equal quarterly payments of principal and interest over a term of approximately four and one-half years and at an interest rate set at a specified percentage over a specified prime rate. In the case of default in any payment and other specified events, each Note would, at the option of the holder, become immediately due and payable, and the interest rate would be increased to three-percent over the non-default rate. As part of the several transactions in which the Banks acquired the Notes, Northwestern, as surety for the investors, issued eleven Financial Guarantee Bonds (“Bond”) which guaranty payment of principal and interest on the Notes. The Notes were originally issued to the Intercontinental Monetary Corporation (“IMC”) and Privatbanken; IMC subsequently assigned the Notes it held to CNB, Ensign and Morris. GRI collapsed almost immediately. Most of the investors never made any payments to the Banks, and almost all of the Notes are now in default. In their original consolidated complaint, the investors asserted several securities laws and other claims against the Banks, and this Court denied the Banks’ motion to dismiss those claims in its Opinion of April 9, 1987, In re Gas Reclamation, Inc. Sec. Litig., 659 F.Supp. 493 (S.D.N.Y.1987). From the first defaults in early 1985 until October 1987, Northwestern made certain payments to the Banks on each of the defaulted Notes to comply with its understanding of its option to cure the investors’ defaults. On October 6, 1987, in response to this Court’s denial of the motions to dismiss, Northwestern stopped making payments to the Banks on the defaulted Notes, claiming that the investors’ claims against the Banks, if proven, would constitute defenses to payments under the Bonds. After discovery was completed, most of the investors stipulated to the discontinuance of their claims against the Banks, and ■ the Banks withdrew their claims against the investors. On August 11,1989, each of the Banks served on Northwestern amended pleadings asserting the claims on which the Banks now seek summary judgment. The Banks argue that Northwestern has breached the Bonds and that the Banks are entitled to payment of each defaulted Note in full, including default interest from the date of investor default on each Note. Each Bond imposes an unconditional obligation on Northwestern to pay the Banks upon the default of any investor on an underlying Note: “The Surety [Northwestern] shall pay Loss hereunder in immediately available funds no later than fifteen (15) days after the receipt of Notice of Default_” Bond, 118. The parties do not dispute that the Banks hold the Notes, that the Notes are in default, that Northwestern issued the Bonds which insure payment of the Notes, and that Northwestern stopped making payments in October 1987. Northwestern advances three arguments in opposition to the Banks’ motions. A. First, Northwestern argues that this Court should stay its decision on the Banks’ motions for partial summary judgment until after this Court decides Northwestern’s motion to enforce its rights of quia timet and exoneration against the investors. Since in this Opinion, we also decide Northwestern’s motion, Northwestern’s request for a stay is moot. B. Second, the Banks and Northwestern disagree as to the amount of Northwestern’s liability under the surety Bonds. There is no dispute as to which Notes are covered by the surety Bonds and the original principal amount of those Notes. The disagreement concerns the amount of interest due and the method for calculating the credit owed to Northwestern for the payments it has already made to the Banks. The Banks argue that Northwestern must pay principal plus default interest from the original date of default for each investor, less a credit for the amounts Northwestern paid during the time it chose to cure the investors’ defaults. The Banks would apply such credit first to the default interest due and then to reduce the outstanding principal balance. Since Northwestern’s payments from early 1985 to October 1987 did not include default interest, such calculation would result in incomplete principal payments during that period. Northwestern argues that it is not required to pay any default interest, but instead owes principal and interest from the time it stopped curing the investors’ defaults in October 1987. Alternatively, Northwestern argues that if it does owe default interest, such additional interest is not due for the period during which it cured the investors’ defaults. Finally, Northwestern argues that even if it did owe default interest from the time of each investor’s original default, its agreement with the Banks provides that Northwestern should nonetheless receive credit for full and timely principal payments from early 1985 to October 1987, the period it chose to cure the investors’ defaults. To resolve this dispute, this Court must look to the language of the surety Bonds and the Notes. “[Sjummary judgment is appropriate where the language of the contract is unambiguous, and reasonable persons could not differ as to its meaning.” United States v. 0.35 of an Acre of Land, 706 F.Supp. 1064, 1070 (S.D. N.Y.1988) (citations omitted). The court must decide as a legal matter whether a contract is ambiguous, and “contract ambiguity is not established simply because the parties disagree as to the meaning of a particular provision.” Id. (citations omitted). On motions for summary judgment, courts must give effect to the objective intent of the parties as indicated by the unambiguous terms of their written agreements. The parties do not dispute that all the Notes provide for acceleration in the event of default and for a three-percent increase in interest after the Notes become due, either at stated maturity or on acceleration. Paragraph eight of all of the surety Bonds requires Northwestern to pay the “Loss,” which all the Bonds define in substantially the same way as: “Loss” as to any Note shall mean the aggregate amount of unpaid principal plus accrued and unpaid interest on the Note which is in Default, such interest to be calculated at the rate specified in such Note from the date interest began to accrue until the date on which the Surety pays such Loss hereunder in accordance with Section 8. Notwithstanding anything to the contrary herein Loss shall exclude penalties of any nature and expenses of collection, and shall be reduced by any payments of principal made by or on behalf of the Defaulting Principal before payment by the Surety. The aggregate of all Losses under this Bond shall not exceed the Limit of Liability. Bond, 111(c) (emphasis supplied). The only material difference in the surety Bonds’ definitions of “Loss” is that the Privat-banken Bonds omit the italicized language excluding “penalties.” Northwestern argues that the three-percent increase in interest on default is a “penalty” that is excluded from the definition of “Loss” in all but the Privatbanken Bonds. We disagree. The surety Bonds all provide for the application of New York law. Under New York law, an agreement to pay an increased interest rate on default is not a penalty, but compensation for the increased risk of non-collection. See Citibank, N.A. v. Nyland (CF8), Ltd., 878 F.2d 620, 624-25 (2d Cir.1989) (following Ruskin v. Griffiths, 269 F.2d 827 (2d Cir.1959), cert. denied, 361 U.S. 947, 80 S.Ct. 402, 4 L.Ed.2d 381 (1960)); Union Estates Co. v. Adlon Constr. Co., 221 N.Y. 183, 187, 116 N.E. 984 (1917) (“Likewise, an agreement to pay interest upon a loan from its date until its payment at a rate before and a differing rate after its maturity is an agreement to pay interest and not a penalty as to the latter rate.”). Because New York law provides a clear definition for the term “penalty” as used in the same context, we determine that there is no ambiguity as to its meaning. This Court, therefore, cannot consider the subjective intent of Northwestern’s loan officer as to whether he believed that the surety Bonds would exclude payments for default interest. Northwestern also argues that the investors’ defaults did not increase the risk of non-collection to the Banks because Northwestern remained guarantor of the payments — both before and after defaults by the investors, the Banks could and did look to Northwestern’s credit to evaluate their risk. However, as the history of this multi-district lawsuit indicates, the risk to the Banks of non-collection did increase after default despite Northwestern’s guarantee of payment. Moreover, the Second Circuit rejected the same argument in Citibank when it recognized that there was an increased risk of non-collection after default on a loan secured by real estate even though the value of the collateral exceeded the amount due. Citibank, 878 F.2d at 625. We find that the unambiguous definition of “Loss” in the surety Bonds does not exclude any default interest due. Next, we must determine the amount of default interest Northwestern is required to pay. The parties do not dispute that each Note provided that “[ujpon default in any payment hereunder (whether by acceleration or otherwise), the remaining payments shall, at the option of the holder, become immediately due and payable” and that: Upon the happening, with respect to any Maker, endorser or guarantor of this Note ... of any of the following events: ... default in payment of principal or interest ... then, ... this Note, if not then due, shall, at the option of the Payee or holder hereof, become due and payable immediately without demand or notice. After this Note becomes due, at stated maturity or on acceleration, any unpaid balance hereof shall thereafter bear interest until paid at a rate of 3 percent more than the rate provided for above.... The surety Bonds provide in paragraph five that the holder of the Note must give Northwestern written notice of any principal’s default within sixty days, and in paragraph eight, Northwestern is required to pay the Banks within fifteen days of receipt of such notice. The surety bonds, however, permitted Northwestern to cure any investor default: Surety shall have the option to cure a Default under any of the Notes by paying to Obligee or Permitted Assignee (whoever holds the Notes) the amount due thereunder, within fifteen (15) days of its receipt of Notice of Default thereunder in accordance with paragraph five (5) thereof. In such event there shall be no acceleration of the subject Note or other Notes made by the defaulting Principal and thereafter due, if such Note is subject to acceleration by the terms thereof. In such event, the Surety shall thereafter make payment when due.... Bond, ¶ 2 (emphasis supplied). In early 1985, when most of the investors did not make the required interest and principal payments to the Banks, Northwestern elected to cure those defaults. According to the express terms of the surety bonds, the Banks cannot accelerate the Notes if Northwestern elects to “cure,” and therefore, no default interest was then due. Northwestern continued to cure the investors’ defaults until October 1987, making each quarterly payment of interest and principal to the Banks on each of the Notes in default. For the period until October 1987, Northwestern does not claim that the Banks failed to provide appropriate notice, and the Banks do not claim that Northwestern’s payments were untimely or insufficient to cover the principal and non-default interest due. In October 1987, Northwestern informed the Banks that it would no longer make quarterly payments to cure the investors’ defaults. At that point, according to the express terms of the Notes, the remaining payments were, “at the option of the Payee or the holder ... due and payable immediately without demand or notice.” Northwestern concedes that two of the Banks, Morris and Privatbanken, notified Northwestern after October 1987 of their intention to accelerate the Notes they held. See Northwestern’s Supplemental Brief in Opposition to the Banks’ Motion for Partial Summary Judgment at 2, 5, 7-8; Affidavit of H. Adam Prussin dated June 29, 1990, Ex. 3 (Morris letter dated October 5, 1988 “demanding] immediate payment of the entire amount of unpaid principal on each of the Principal’s Notes plus all accrued and unpaid interest thereon” at the default rate of interest), Ex. 8 (Privatbanken letter dated March 21,1988 stating that “[w]e are not waiving or modifying our position regarding full acceleration of the defaulted notes ...” and “hereby demanding full payment under the above Bond.”); Affidavit of Jan Paulin dated June 26, 1990, Ex. D (Privatbanken letter dated February 10, 1988). Northwestern however argues that the other two Banks, CNB and Ensign, never provided unequivocable evidence of their intention to accelerate the Notes they held after Northwestern stopped curing the investors’ defaults in October 1987. We disagree. The express terms of the Notes provide that no notice or demand is required to accelerate payment. CNB and Ensign clearly wrote letters to Northwestern after October 1987 stating their understanding that the Notes they held had been previously accelerated. See Affidavit of H. Adam Prussin dated June 29, 1990, Ex. 6 (Ensign notices of default and proofs of loss, dated October 27, 1987, stating: “This Notice of Default/Proof of Loss shall not be deemed a waiver of the undersigned’s option to accelerate said Principal’s note (the undersigned has accelerated said note by notice dated 5/31/85).”), Ex. 10 (CNB letter dated December 9, 1987 stating: “This Notice of Default/Proof of Loss shall not be deemed a waiver of the undersigned’s option to accelerate the Principals notes. The undersigned has accelerated said notes by notice dated April 10, 1985.”). In fact, those notices simply repeat the language contained in the prior notices sent by the Banks to Northwestern at each quarterly payment date. Even if those letters were technically incorrect because Northwestern’s cure prevented acceleration in early 1985, Northwestern clearly knew after October 1987 that the Banks intended to exercise their option to accelerate all remaining payments. Moreover, in a letter to Northwestern’s counsel at the time Northwestern was considering ceasing to cure the investors’ defaults, the Banks’ counsel made it clear that the Banks believed that the Notes had been accelerated and that full payment of principal and interest was due. See Affidavit of Darrell K. Fennell dated June 29, 1990, Ex. E. It is clear from the correspondence between all the Banks and Northwestern that each Bank intended to accelerate the Notes it held in early 1985 and that each Bank accepted Northwestern’s payments on each quarterly payment date without prejudice to its rights to later pursue claims for additional default interest. Since the Notes do not require any formal notice of acceleration, we reject Northwestern’s claim that CNB’s and Ensign’s reliance on their 1985 notices of acceleration is invalid. Whether the Banks were required to inform the Investors, Northwestern, or both, of their intention to accelerate payment of the Notes, we find that the evidence submitted in the supplemental affidavits satisfies the provisions in the Notes regarding acceleration. After the Banks’ acceleration of the Notes became effective in October 1987, Northwestern was required by the express terms of the Notes, as incorporated by the definition of “Loss” in the surety Bonds, to pay the default interest rate on the outstanding principal balance of each Note. The Banks argue that default interest is due from the date of each investor’s original default. The Banks acknowledge that default interest is not due if Northwestern exercised its option to cure the investors’ defaults. However, according to the Banks, Northwestern could only satisfy its option to cure the investors’ defaults by making all the required interest and principal payments on the Notes until their stated maturity. Although Northwestern initially satisfied its obligation to cure, the Banks contend that Northwestern’s decision to stop making payments to the Banks in October 1987 caused a complete violation of Northwestern’s option to cure. Rather than allowing for a partial cure, the Banks argue that Northwestern must retroactively pay the default interest rate for the period from early 1985 to October 1987. We disagree. Again, we believe that the unambiguous terms of the contract indicate the parties’ intent. Under paragraph 2 of the surety Bonds, no default interest was due while Northwestern was complying with its option to cure. Each time an investor failed to make a quarterly payment, the Bank which held the Note sent Northwestern a Notice of Default/Proof of Loss. Each time Northwestern made payment on behalf of that investor, Northwestern effected a cure. As long as Northwestern continued to make those payments, the Banks could not accelerate the Notes and could not charge default interest. The provision requiring “the Surety [to] thereafter make payment when due” does not mean that only a complete cure will be effective. Instead, that provision simply obviates the need for notice under paragraph five of the surety Bonds and the resultant delay in payment. In sum, we find that the unambiguous terms of the Notes and Bonds indicate that the amount due under the surety Bonds is the outstanding principal balance of each Note plus default interest due calculated only from the date Northwestern stopped making payments to the Banks in October 1987. C. Third, Northwestern argues that “this Court’s decision on Northwestern’s motion for summary judgment against the Investors creates a variety of substantive issues concerning Northwestern’s liability under the bonds and the Banks’ liability on Northwestern’s claim for contribution.” Northwestern Memorandum in Opposition to the Banks’ Motion for Partial Summary Judgment at 2-3. Specifically, Northwestern argues that if the investors have defenses against the Banks on their Notes, then the surety Bonds are unenforceable against Northwestern. As a general rule, a surety may assert against a creditor many defenses of its principal. See 74 Am.Jur.2d, Suretyship § 104 (1974). However, the parties agree that paragraph three of each Bond contains the following specific waiv-er : Defenses available to the Surety [Northwestern] or any Principal [investor] against the Obligee [Bank] or Permitted Assignee [Bank] to deny payment of the Notes or of a claim under this Bond due to acts or omissions of the Obligee or Permitted Assignee, or other entity or person (except for changes in the Notes made without the written consent of the Surety or for acts of gross negligence or willful misconduct by the Permitted As-signee) shall not be valid against the Permitted Assignee. Such defenses include but shall not be limited to: a) the invalidity of any Note; b) the illegality of any Note; c) the unenforceability of any Note; d) the bankruptcy of the Obligee or any Principal; e) Any defense that the Principal is under no obligation to discharge all or any part of its obligations to the Obli-gee, Permitted Assignee, or any other person under the Note, including any defense relating to the assignment of the Notes or any Principal(s) interest in the Obligee to the Permitted As-signee; and f) any defense based upon the failure of any Principal to execute this Bond or the failure of the Obligee to perform its obligations under this Bond (other than under paragraph 4). g) those specific defenses waived under the provision of paragraph 9A. The parties also agree that each surety Bond included the following additional waiver, first as a rider and then as a provision in the surety Bonds themselves: 9A. Waiver of Defenses The Surety [Northwestern] acknowledges that (a) it has satisfied itself with respect to all matters affecting it concerning the Notes and the transaction in which they were issued, and (2) the Permitted Assignee [Bank] has made no representation or warranty as to the validity, genuineness or collectibility of any Note. The following shall not relieve the Surety of its obligations to the Permitted Assignee under this Bond: a. Any misinformation, breach of warranty, fraud, misrepresentation or failure to provide any information by any Principal [investor] or the Obligee [Bank] or any other person (except the Permitted Assignee). b. Any violation of the securities laws of the United States or of any state of the Obligee, the Permitted Assignee or any other person in connection with the transaction in which the Notes were issued. c. Any defect in any Note that renders such Note void, voidable, unenforceable or uncollectible, in whole or in part, or subject to any set-off, claim or defense, real or personal, including, without limitation, fraud, forgery or usury. d. The failure of the Permitted Assign-ee or any payee or endorsee of any Note to be a holder-in-due-course or the non-negotiability of any Note. Northwestern does not claim that the Banks engaged in “acts of gross negligence or willful misconduct” or violated the exclusion for “any misinformation, breach of warranty, fraud, misrepresentation or failure to provide any information” by the Banks. Northwestern is therefore required by the terms of the Bonds to pay to the Banks all principal and interest due on the defaulted Notes. In its defense, Northwestern does not directly claim that the waiver provisions in the surety Bonds are unenforceable. In fact, in opposition to the investors’ prior cross-motion for summary judgment, Northwestern argued that these Bonds are enforceable. However, Northwestern notes that in our Opinion of March 27, 1990, this Court decided that there were genuine issues of material fact that precluded granting to Northwestern summary judgment on the investors’ claims that the waiver provisions of the surety Bonds are void. Northwestern therefore argues in opposition to the Banks’ motion that if the investors ultimately prevail on their claims, the Banks should not be able to enforce those same waivers of defenses against Northwestern. Although the parties briefed the issue, we did not address in our March 27 Opinion whether, assuming that the waiver of defenses in the surety Bonds are in fact void, the investors have valid defenses to payment of the Notes. It was unnecessary for this Court to reach that issue in denying Northwestern’s motion for summary judgment. We now consider those arguments and reject the various defenses asserted by the investors against the Banks. First, we note that at various times in connection with their acquisition of the Notes, the Banks asked each of the investors to execute an estoppel letter which expressly waived defenses to payment of the Notes. Northwestern has submitted to the Court letters from 48 investors to Pri-vatbanken stating: I expressly waive, as against the Bank and any subsequent holder of the Note, any defenses, set-offs, counterclaims or other objections to the full and prompt payment of all principal of and interest on the Note that I may now have or hereafter acquire against Gas Reclamation, Inc. or any other person, firm or other entity directly or indirectly controlled by, controlling or under common control with Gas Reclamation, Inc. See Affidavit of H. Adam Prussin dated Jan. 29, 1990; Supplemental Memorandum of Northwestern in Support of its Motion for Summary Judgment; Supplemental Affidavit of H. Adam Prussin dated February 6, 1990, Ex. 2. Northwestern also has submitted to the Court executed “Notice and Acknowledgment of Assignment” letters from 21 of the IMC investors which state: In order to induce the Bank to accept the notes as collateral security, and with full knowledge that the Bank will rely on your representations and agreements herein, we also request that you represent, warrant and agree that the Note is your valid and binding obligation and that you will make full payment of all amount due under the Note in accordance with the terms of the Note without claiming any discount, defense, setoff or other right. Please acknowledge the terms of this letter by signing the extra copy in the space provided below and returning the same to the Bank in the enclosed, self-addressed envelope. (emphasis supplied). See Supplemental Affidavit of H. Adam Prussin dated Feb. 6, 1990. While other investors may have also executed such estoppel letters, for the purposes of this motion for partial summary judgment, there is no dispute that those 68 of the 97 investors did waive their defenses to payment of their Notes based on claims against GRI. It is well-settled that such waivers are fully-enforceable whether or not the investors were aware of any fraud defenses when they executed the waivers. See U.C.C. § 9-206(1); Bankers Trust Co. v. Litton Systems, Inc., 599 F.2d 488, 490-91 (2d Cir.1979); Jonwilco, Inc. v. C.I.T. Financial Services, 662 S.W.2d 664 (Tex.Ct.App.1983); FDIC v. Kassel, 72 A.D.2d 787, 421 N.Y.S.2d 609 (1979). Therefore, even if the surety Bonds had not contained waivers of defenses, Northwestern could not assert any defenses on behalf of the 68 investors who executed such estoppel letters. Second, as to the other investors who may not have signed estoppel letters, we must decide whether the Notes are subject to fraud defenses based on GRI’s misconduct. The investors claim that the Notes are not negotiable instruments, that the Banks are not holders-in-due-course, and that GRI was the original holder of the Notes prior to their assignment to the Banks. We agree with the investors that the Notes are not negotiable instruments. Each Note bears interest at the lesser of a specified rate over the prime rate charged by a specified bank or the maximum interest rate prescribed by law. Each Note also contains a Texas choice of law provision. Under sections 3.104 and 3.106 of Texas’ Uniform Commercial Code, the holder of a negotiable instrument must be able to calculate the amount of any interest due without reference to any outside source. Since the calculation of interest due on the Notes requires reference to the prime rate then being charged by a specified bank, a source outside the instrument itself, the Notes are not negotiable instruments. See National Union Fire Ins. Co. v. Alexander, 728 F.Supp. 192, 200 (S.D.N.Y.1989) (applying Texas law); National Union Fire Ins. Co. v. Tegtmeier, 673 F.Supp. 1269, 1271-73 (S.D.N.Y.1987). But see First City Fed. Sav. Bank v. Bhogaonker, 715 F.Supp. 1216, 1219-20 (S.D.N.Y.1989) (giving retroactive effect to 1988 amendment to New York U.C.C. § 3-106 which expressly permits variable interest rates on negotiable instruments). Since the Notes are not negotiable instruments, the investors argue that their claims for securities fraud against GRI can be asserted as defenses to payment against the Banks. Since we find that GRI was never an owner or holder of the Notes, we reject that claim. Each investor originally signed his Note with the name of the payee left blank and executed a “Specific Power of Attorney” that appointed GRI as his “true and lawful attorney-in-fact” “[t]o insert the name of the Bank which will be the Payee of the Note ...” and “[t]o receive the proceeds of the loan....” GRI accumulated these signed Notes and negotiated with the Banks to obtain financing. At the first seven closings of investor purchases, GRI inserted the name IMC as payee of the Notes, and at the last two closings, GRI inserted the name Privatbanken. IMC subsequently endorsed various Notes to CNB, Ensign and Morris. The recitals in most of the surety Bonds confirm this sequence of events: WHEREAS, Principals for valuable consideration have delivered to Gas Reclamation, Inc. (“GRI”) their promissory notes payable in blank ... and have authorized Obligee to insert the name of payee therein; and WHEREAS, (“GRI”) has caused the name of [IMC] to be inserted as payee of the Notes, and [IMC] has endorsed the Note to the Permitted Assignee ... An instrument signed in blank is not complete and enforceable until the blanks are filled in. U.C.C. § 3-115(1). The investors’ powers of attorney did not authorize GRI to fill in its own name as payee, only the name of a bank, and GRI’s name does not appear anywhere on the face of any Note. By acting as the investors’ agent, GRI did not become an owner or holder of the Notes. To support their argument, the investors point to other terms and recitals in the surety bonds, to deposition testimony and to IMC’s commitment letter which stated that IMC would “purchase from GRI” the promissory Notes. See Gold Aff. 11 67, Gold Aff. Ex. 61, Butler Dep. Ex. 109A. However, the investors do not dispute the fact that GRI accepted the signed notes from the investors and filled in the name of a Bank as payee pursuant to its power of attorney. This Court is not bound by legal conclusions contained in other documents and made by various participants in the transactions. We therefore conclude that GRI was never a holder or owner of any Note, but only the investors’ agent for completion and delivery of those instruments. The investors cannot assert their claims against GRI for fraud as defenses against their obligations to the Banks. The investors also argue that even if the original holders of the Notes were Privat-banken and IMC, not GRI, their defense of fraudulent inducement still exists. Specifically, the investors argue that Richard Kelly, IMC’s agent, knew of Alan Esrine’s criminal background as early as June, 1984, but that IMC did not disclose that fact to the investors. See Texas’ Investors Response to the Motion for Quia Timet and Exoneration Relief at 17 & Ex. C. The investors also argue that an internal memorandum indicates that Privatbanken had reviewed a copy of the Jordan Program Report and knew that the funds from the gas reclamation units would be pooled even though the Private Placement Memorandum given to both Privatbanken and the investors represented that the funds from each unit would remain segregated. See id. at 18 & Ex. D. The investors argue that as a result these fraudulent nondisclo-sures and misrepresentations by the original payees of the Notes, the Notes are unenforceable by CNB, Ensign and Morris, the assignees of IMC, and Privatbanken. Under New York law, a duty to disclose arises “where the parties enjoy a fiduciary relationship” or “where one party possesses superior knowledge, not readily available to the other, and knows that the other is acting on the basis of mistaken knowledge.” Aaron Ferer & Sons, Ltd. v. Chase Manhattan Bank, 781 F.2d 112, 123 (2d Cir.1984) (citations omitted); see Beneficial Commercial Corp. v. Murray Glick Datsun, Inc., 601 F.Supp. 770, 773-74 (S.D.N.Y.1985); Restatement (Second) of Contracts § 161 (1981); see also Castillo v. Neeley’s TBA Dealer Supply, Inc., 776 S.W.2d 290, 295 (Tex. Ct.App.1989). Banks generally do not owe their customers any fiduciary duty, see Aaron Ferer & Sons, 731 F.2d at 122, and the parties here do not argue that they intended the relationship between the Banks and the investors to be more than a debtor-creditor relationship. There is also no evidence indicating that IMC knew that the investors were acting on the basis of any mistaken knowledge or that Esrine's criminal background caused the investors’ losses. It is also clear that Privatbanken did not possess any superior information about the contradictory statements regarding “pooling” of funds. Therefore, IMC and Privatbanken did not have any duty to disclose such information. We reject the investors’ defense of fraudulent inducement by IMC and Privatbanken. In sum, we hold that under the terms of the Bonds, Northwestern has waived defenses to payment of the Notes. Moreover, even if the waiver of defenses provisions in the surety Bonds are void, the investors do not have any valid defenses to payment of their Notes. Therefore, Northwestern, as their surety, is obligated on their behalf to make payment to the Banks. The Banks’ motions for partial summary judgment are granted. II. Northwestern's Motion for Quia Timet Relief or Exoneration Northwestern moves for “an order pursuant to this Court’s general equity power enforcing Northwestern’s equitable rights, as surety, of quia timet and exoneration by ordering each Investor, and each broker-defendant investor ... to pay all amounts due and owing under his promissory note” held by the Banks. We deny the motion. Exoneration is the equitable right of a surety to compel its principal to pay his or her debt and thereby discharge the surety’s obligation under its bond. See Filner v. Shapiro, 633 F.2d 139, 142 (2d Cir.1980); Admiral Oriental Line v. United States, 86 F.2d 201, 204 (2d Cir.1936) (“In equity, ... before paying the debt a surety may call upon the principal to exonerate him by discharging it; he is not obligated to make inroads into his own resources when the loss must in the end fall upon the principal.”) (citations omitted); Restatement of Security § 112 (1941). Quia timet is the right of the surety to compel its principal to place the surety “in funds” sufficient to prevent anticipated future losses, where a surety has reasonable grounds to believe that its principal will not perform his obligations: A court of equity will also prevent injury in some cases by interposing before any actual injury has been suffered by a ... bill quia timet.... Thus a surety may file a bill to compel the debtor on a bond in which he has joined to pay the debt when due, whether the surety has been actually sued for it or not.... New Orleans v. Gaines’s Administrator, 131 U.S. 191, 212, 9 S.Ct. 745, 752, 33 L.Ed. 99 (1889) (citation omitted). See Milwaukie Constr. Co. v. Glens Falls Ins. Co., 367 F.2d 964, 966 (9th Cir.1966) (quoting 50 Am.Jur. Suretyship § 225 (1944)) (“ ‘Not only does a bill quia timet lie to compel the principal to pay the debt after it has become due, but its use has also been extended to compel the principal to furnish the surety indemnity against possible loss where the surety has reasonable grounds for anticipating that his rights are being jeopardized and that he will incur a liability by threatened conduct of the principal.’ ”); American Surety Co. of New York v. Lewis State Bank, 58 F.2d 559, 560 (5th Cir.1932). These rights are well-established principles of the common law of suretyship. See e.g., Restatement of Security § 112 (1941); 63 N.Y.Jur.2d Guaranty and Suretyship § 419 (1987); 74 Am.Jur.2d Suretyship § 174 (1974). The indemnity contracts between the investors and Northwestern also expressly grant Northwestern similar rights: If requested, [the investor will] place the Company [Northwestern] in funds immediately to meet any claim or demand before the Company shall be required to make payment. These rights are separate and distinct from the surety’s right to indemnification, which is the right to receive from its principal reimbursement after the surety has already paid the creditor. Northwestern here has clearly demonstrated the existence of its contractual, common law and equitable claims for quia timet and exoneration relief. As our decision above on the Banks’ motions for partial summary judgment indicates, there exists a valid debt, due and unpaid, for which Northwestern contracted to act as surety. The Banks are also clearly entitled to choose to seek payment from Northwestern as their surety rather than from the individual investors. However, we decline, for these purposes, to separate Northwestern’s claims for relief against the investors from the investors’ claims for relief against Northwestern. As to these latter claims, if the investors succeed at trial, they would have the right to preclude or offset the relief Northwestern seeks from them. These claims by the investors have survived both Northwestern’s motion to dismiss and Northwestern’s motion for summary judgment. The Federal Rules of Civil Procedure provide for joint resolution of all claims arising out of a single transaction or occurrence. We therefore consider the claims presented by the investors in connection with Northwestern’s motion for exoneration and quia timet relief. Northwestern’s motion presents the question which parties should be required to advance funds during the pendency of this lawsuit. It is no longer possible for this Court to maintain the status quo. Our decision above to grant partial summary judgment to the Banks establishes that the investors do not have any defenses to payment of their Notes and that the Banks are entitled to be paid by Northwestern. We must now decide whether or not Northwestern is entitled to be reimbursed simultaneously by the individual investors. In advance of a trial on the merits of the various claims of Northwestern and the individual investors, we refuse to grant that relief to Northwestern. The ultimate responsibility for the debts evidenced by the Notes can only be established by such a trial. Northwestern, as surety, accepted premiums from the investors in exchange for its promise to guarantee the investors’ payments to the Banks. That contractual promise did not limit Northwestern’s commitment to pay the Banks to cases of financial insolvency of individual investors. Even if we assume that Northwestern will ultimately collect from each investor, one of the obligations Northwestern was paid to assume as surety was the risk that it would be required to advance payments for which it would eventually receive reimbursement. Northwestern argues that our decision will cause it to lose its equitable rights to exoneration and quia timet relief. After it pays the Banks, Northwestern can only seek indemnification or reimbursement from the investors. Northwestern argues that a surety’s rights to equitable relief prior to payment should not be lost simply because the principals have asserted claims against their surety. We do not decide whether any allegations by a principal against its surety will in and of themselves defeat a motion by the surety for equitable relief prior to payment. We note that in this case the investors’ claims have survived Northwestern’s motion for summary judgment. Forced to chose between the surety and its principals, we believe that in this case equitable considerations require Northwestern to make the required pay ments to the Banks and wait until the conclusion of trial for reimbursement, if any, from the investors. We note that three federal district courts have recently granted relief to Northwestern in cases involving similar facts. See Northwestern Nat’l Ins. Co. v. Alberts, 741 F.Supp. 424 (S.D.N.Y.1990); Wingsco Energy One v. Vanguard Groups Resources 1984, Civ. No. H-86-452, 1988 WL 142135 (S.D.Tex. Nov. 14, 1989); Northwestern Nat’l Ins. Co. v. Barney, C86-3936 (N.D.Ohio Nov. 18, 1988). All three cases involved similarly-structured bonded investor note transactions. The banks had successfully established their rights to payments from Northwestern, and Northwestern moved for a preliminary injunction to enforce its rights, as surety, to quia timet and exoneration relief against the investors. In all three cases, the investors had outstanding claims against Northwestern. The courts, applying the standards for issuance of a preliminary injunction, concluded that Northwestern was likely to succeed on the merits at trial against the investors. However, rather than ordering the investors to pay the banks directly, as Northwestern sought, the three district judges, acting pursuant to their general equitable powers, ordered the investors to pay into court as security for Northwestern the amount that Northwestern was required to pay the banks. In effect, the courts avoided choosing in advance of trial between the surety and its principals by requiring both to pay. We believe that in this case the investors have made a more significant showing of the merits of their claims against Northwestern. This Court recently denied Northwestern’s motion for summary judgment on the investors’ claims. The Court in Alberts, on the other hand, did not consider the merits of the investors’ cross-claims against the surety, but limited its inquiry to the merits of the quia timet claims. In Wingsco, the court also did not consider the merits of the investors' claims except to state that “Northwestern might have some liability to the Plaintiffs if other facts are shown to be true.” (emphasis in original). The Barney court, on the other hand, carefully considered the investors’ claims against their surety and concluded that “[t]he shareholder-defendants have not offered any proof to augment or support the claims of their amended counterclaim and cross-claim” and that their claims were “found wanting” and were of “uncertain nature.” The other three courts also seem to have ruled on the quia timet motions at an earlier stage in the litigation proceedings. In Alberts, the parties were still seeking leave to amend their complaint and counterclaims, and discovery had not been completed. While the Wingsco court had denied Northwestern’s motion for summary judgment before granting quia timet relief, the court in Barney evaluated the merits of the claims in connection with the quia timet motion. In all three cases, the surety had moved for a preliminary injunction. While in those cases it may have been difficult or impractical for the courts to evaluate the merits of the investors’ claims against their surety, the proceedings in this multidistrict case have advanced to a stage where such a question is capable of efficient resolution. The parties here have conducted discovery for over three years, and this Court has twice tested the merits of the investors' claims. We do not suggest that before a court can grant quia timet relief, it must permit full discovery. However, since the issues in this case have been so fully briefed and argued, we believe that it is appropriate to consider our prior evaluation of the merits of the investors’ claims in evaluating Northwestern’s entitlement to the equitable relief it seeks. While the traditional quia timet remedy would require a principal to pay the creditor directly, Northwestern also argues here in the alternative that this Court should order the investors to pay money into court as security. Such relief clearly satisfies the Banks’ rights to receive payment and imposes equal financial burdens on the surety and its principals. However, we find no difference between that order and an order granting Northwestern the provisional relief of attachment. Since Northwestern does not argue that it could meet the well-defined requirements for attachment relief under either New York or Texas law, we refuse to circumvent those state law provisional remedies and order identical relief under this Court’s general equitable powers. But see Alberts, supra. Northwestern’s motion for quia timet or exoneration relief is denied. III. Cross-Motions for Reconsideration Both Northwestern and the Abish Investors move for reconsideration of this Court’s March 27, 1990 Opinion. We grant their motions. Upon reconsideration, we adhere to our prior decision except insofar as it is inconsistent with today’s decision. Specifically, we decide today that even if the waiver of defenses provisions in the surety Bonds are void, the investors do not have any valid defenses to payment of their Notes. See supra at 16ff. Therefore, even if Northwestern did not disclose to the investors that the surety Bonds contained such waivers, that nondisclosure did not injure the investors. Northwestern therefore argues that the investors have not stated a claim for rescission of their indemnity agreements under section 29(b) of the Securities Exchange Act of 1934, 15 U.S.C.A. § 78cc(b) (1981). However, as our prior Opinion noted, if the indemnity agreements are treated as part of a single contract with the other documents in the PPM, then genuine disputes over material facts still exist and preclude granting Northwestern summary judgment on the investors’ section 29(b) claims. See In re Gas Reclamation, Inc. Sec. Litig., 733 F.Supp. at 719-20. We have also considered Polycast Technology Corp. v. Uniroyal, Inc., 728 F.Supp. 926 (S.D.N.Y.1989) and adhere to our prior decision granting Northwestern summary judgment on the investors’ claims for violations of section 12 of the Securities Act of 1933, 15 U.S.C.A. § 771. IV. Summary The Banks’ motions for partial summary judgment are granted. Northwestern’s motion for quia timet or exoneration relief is denied. Northwestern’s and the Abish Investors’ cross-motions for reconsideration are granted. Upon reconsideration, we adhere to our prior decision, In re Gas Reclamation, Inc. Sec. Litig., 733 F.Supp. 713 (S.D.N.Y.1990), except to the extent it is inconsistent with today’s Opinion. Pending before this Court are Northwestern’s objections to Magistrate Berni-kow’s Report and Recommendation dated April 16, 1990 with respect to Northwestern’s motion to dismiss the Banks’ punitive damages claims and Northwestern’s motion in the alternative for summary judgment on those claims. The parties are directed to submit letters to the Court by July 23, 1990 briefly explaining any other outstanding pre-trial matters. The plaintiffs are directed to notify all parties that this Court will hold a conference on September 12, 1990 at 4:30 p.m. in Courtroom 601. SO ORDERED. . We do not rely on the fact that the Banks and the investors have agreed to dismiss their claims against each other because Northwestern should not be prejudiced by what may have been a strategic ploy to enhance Northwestern’s liability. The investors argued in opposition to Northwestern's motion for summary judgment that they had valid defenses to payment of their Notes, and we consider those arguments in connection with this pending motion. . There are some slight and immaterial variations in the wording of some of the Bonds. For example, Bonds which include paragraph 9A, infra, as a rider do not contain subparagraph (g). . Investor R. Harris submitted estoppel letters to both Privatbanken and IMC.

PER CURIAM: Evin Josué Marquez-Castillo, a native and citizen of Honduras, petitions this court for review of the Board of Immigration Appeals’ affirmance of the immigration judge’s denial of his request for asylum and withholding of removal. Marquez has also requested a stay of removal pending this court’s consideration of his petition for review. Marquez argues that he is entitled to asylum and withholding of removal because he is a member of a social group, i.e., young people who refuse to pick sides between or join rival gangs in Honduras. He further argues that he has a well-founded fear of persecution because the gangs threatened him based on his refusal to choose sides in the gang conflict. As to Marquez’s asylum claim, because harassment and threats do not qualify as persecution and because Marquez has not shown that any of the gangs’ actions amounted to persecution, he has not shown that he was subject to persecution. As a result, Marquez also has not shown that his fear of being beaten or killed on his return to Honduras was objectively reasonable, and thus he has not established a well-founded fear of future persecution. As to Marquez’s withholding of removal request, because Marquez has failed to prove that he was entitled to asylum, a fortiori he has not shown that he meets the more stringent standard for proving that he is entitled to withholding of removal. Marquez’s petition for review is DENIED, and his motion for a stay pending this court’s consideration of his petition for review is DENIED as moot. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . See Chen v. Gonzales, 470 F.3d 1131, 1135 (5th Cir.2006); Eduard v. Ashcroft, 379 F.3d 182, 188 (5th Cir.2004). . See Chen, 470 F.3d at 1135. . See Efe v. Ashcroft, 293 F.3d 899, 906 (5th Cir.2002).

PER CURIAM: Darryl L. Moffett appeals the district court’s order denying his motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006). Moffett argues that the district court erred by failing to reduce his sentence under Amendment 706 of the Guidelines, see U.S. Sentencing Guidelines Manual (“USSG”) § 2Dl.l(c) (2008); USSG App. C, Amend. 706. We have reviewed the record and find the district court properly exercised its discretion after considering the applicable 18 U.S.C. § 3553(a) (2006) factors. Accordingly, we affirm. 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.

PER CURIAM: Juan Carlos Araujo pleaded guilty to conspiring to distribute methamphetamine from March 2006 to December 20, 2006, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(c), and 846. At Araujo’s sentencing hearing, his attorney stated that Arau-jo had only participated in the conspiracy on December 20, 2006 and objected to factual inaccuracies in the presentence report. The district court adopted the pre-sentence report’s drug-quantity calculation, which included both the amount of methamphetamine with which Araujo was directly involved on December 20th (1.1 kilograms) and “relevant conduct” from the conspiracy’s previous methamphetamine sales (6.4 kilograms). Araujo was sentenced to 210 months’ imprisonment followed by three years of non-reporting supervised release. Araujo now argues on appeal that the district court clearly erred when calculating his drug quantity because the evidence did not show that the 6.4 kilograms was within the scope of his agreement or reasonably foreseeable to him. For the following reasons, we affirm the judgment of the district court. I. FACTUAL AND PROCEDURAL BACKGROUND In March 2006, Officer Richard Reiger of the Texas Department of Public Safety (“DPS”) learned that an organization in Dallas was trafficking methamphetamine. Officer Reiger, acting undercover, subsequently bought methamphetamine from a contact within the methamphetamine trafficking organization. Shortly thereafter, Reiger and Juan Lopez Gomez, another member of the organization, agreed to transport five pounds of methamphetamine to North Carolina in a television set on December 20, 2006. On December 20, Officer Reiger arranged for Gomez to meet him at a parking lot in Mesquite, Texas. DPS officers also set up surveillance of Gomez at an apartment complex. Gomez left the complex accompanied by defendant-appellant Juan Carlos Araujo and Mauricio Joel Ibarra. Gomez put a television in the trunk of a Honda, and Araujo drove the Honda to the parking lot. Once all three arrived in separate cars, Gomez removed the television, and he and Araujo got into Officer Reiger’s car with the television. Officers then arrested Ibarra, Gomez, and Araujo, finding 1.1 kilograms of methamphetamine in the television. On that same day, officers also searched Ibarra’s apartment—apartment 301—at the complex. Inside, the officers discovered U.S. currency totaling $142,897; 50.18 grams of methamphetamine; digital scales; and guns. The officers also found two notebooks outside of apartment 301, each containing ledgers that detailed millions of dollars of methamphetamine transactions. The officers additionally arrested Modesto Contreras Araujo (“Modesto”), Araujo’s brother, who was inside apartment 301. Officers then searched apartment 305, which belonged to Modesto. Inside the apartment, police found an empty television box that contained travel instructions labeled “nor Carolina,” as well as digital scales and guns. An occupant of the apartment stated that Modesto had stored methamphetamine in the apartment the previous day and had just removed it. In January 2007, Araujo and six others, including Ibarra and Modesto, were charged with conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(c), and 846. Araujo pleaded guilty to conspiring to distribute methamphetamine from March 2006 to December 20, 2006. At the plea hearing, the prosecutor read a factual basis that Arau-jo’s attorney said was “factually accurate” to “the extent that it details Mr. Araujo’s conduct.” In the presentence report (“PSR”), the parole officer recommended a base offense level of 36 under United States Sentencing Guideline § 2Dl.l(c)(2). This offense was determined based on the officer attributing 7.5 kilograms of methamphetamine to Araujo (1.1 kilograms in the television set plus 6.4 kilograms of methamphetamine). The 6.4 kilograms were estimated based on the theory that the $142,897 found in apartment 301 represented proceeds from prior drug sales. Araujo also received a two-level increase because of firearm possession and a two-level increase because the methamphetamine was imported from Mexico. The probation officer thus recommended a total offense level of 40, with a Criminal History Category of I because Araujo did not have any prior criminal convictions. This led to an advisory sentencing range of 292-365 months’ imprisonment. Araujo objected to, inter alia, the PSR’s drug-quantity calculation and to its failure to reduce the sentence for acceptance of responsibility. He specifically asserted that he only participated in the conspiracy on December 20, 2006, the date of the arrest, and that he should not be held accountable for the money found in apartment 301. The probation officer responded to this objection in an addendum, stating that Araujo was responsible for the currency in apartment 301 because he had pleaded guilty to a conspiracy on the dates listed in the indictment, March 2006 to December 20, 2006. The addendum also stated that Araujo had a key to apartment 301 on his key ring and that this suggested he was more involved than simply “being in the wrong place at the wrong time.” The officer also noted Araujo’s relation to Modesto and that the DPS officers had seen Araujo, Gomez, and Ibarra leaving the apartment complex together. At the sentencing hearing, Araujo reurged his objection. His attorney stated: Mr. Araujo, what he has told me, only recently came to this country or whatever and just recently got involved with these fellows. He was not sure. He knew something was going on, not sure of the depth of it. I understand a conspiracy you don’t have to understand all that. He knew he was doing wrong---About the money part of it, that has to do with his recently coming into the country. Once again, there’s no way to determine how much money was earned before at—when he entered the conspiracy. The problem with undocumented aliens is there is no documentation to show when he became involved in this or whatever. Araujo’s attorney also noted that the PSR was factually inaccurate because Araujo possessed the key to apartment 305 and not apartment 301, where the money and drugs were found. The prosecutor agreed that the PSR was incorrect insofar as it stated that Araujo had a key to apartment 301. The prosecutor also acknowledged that the PSR falsely stated that Araujo was seen leaving apartment 301; in fact, the officers conducting surveillance were outside the apartment complex and could not see the doors to 301 and 305. Nonetheless, the prosecutor argued that Araujo should be held accountable for the currency because the individuals in both apartments appeared to be working together. The district court adopted the PSR drug-quantity calculation and sentenced Araujo to 210 months’ imprisonment followed by three years of non-reporting supervised release. Araujo timely appealed. II. STANDARD OF REVIEW “Findings of fact used in calculating the [Sentencing] Guidelines range are reviewed for clear error, while interpretation of the Guidelines themselves is reviewed de novo.” United States v. Fernandez, 559 F.3d 303, 319 (5th Cir.2009). “The district court’s determination of the amount of drugs attributable to a defendant is a finding of fact reviewed for clear error.” United States v. Posada-Rios, 158 F.3d 832, 878 (5th Cir.1998). If a district court’s finding is plausible in light of the record as a whole, there is no clear error. United States v. Solis, 299 F.3d 420, 455 (5th Cir.2002). A factual finding is clearly erroneous when, “although there is evidence to support it, the reviewing court based on all the evidence is left with the definitive and firm conviction that a mistake has been committed.” Houston Exploration Co. v. Halliburton Energy Servs., Inc., 359 F.3d 777, 779 (5th Cir.2004) (internal quotation marks omitted). III. DISCUSSION Pursuant to § 2Dl.l(a)(3) of the Sentencing Guidelines (the “Guidelines”), the quantity of drugs involved in a drug trafficking offense determines the offense level of a defendant who has been convicted of such a crime. See United States Sen tencing Guidelines Manual § 2Dl.l(a)(3). This quantity of drugs includes both drugs with which the defendant was directly involved and drugs that are attributed to the defendant as part of his “relevant conduct” in a conspiracy. Id. § lB1.3(a)(l)(B). Pursuant to § lB1.3(a)(l)(B) of the Guidelines, “relevant conduct” includes “all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.” Id. “Relevant conduct” is only prospective and therefore “cannot include conduct occurring before a defendant joins a conspiracy.” See United States v. Carreon, 11 F.3d 1225, 1235-36 (5th Cir.1994). Furthermore, under Rule 32 of the Federal Rules of Criminal Procedure, a sentencing court making a determination regarding a disputed portion of a PSR must either “rule on the dispute” or conclude that such a ruling is unnecessary. Fed R. Crim P. 32(i)(3)(B). The court may determine that a ruling is unnecessary if “the matter will not affect sentencing” or if “the court will not consider the matter in sentencing.” Id. A court’s adoption of a PSR complies with Rule 32 when “the findings in the PSR are so clear that the reviewing court is not left to ‘second-guess’ the basis for the sentencing decision.” Carreon, 11 F.3d at 1231. This court has often recognized that a district court may make implicit findings when adopting a PSR and need not make a “eateehismic regurgitation of each fact determined.” See United States v. Sherbak, 950 F.2d 1095, 1099 (5th Cir.1992); see also, e.g., United States v. Rodriguez-Rodriguez, 388 F.3d 466, 468 n. 8 (5th Cir.2004); United States v. Duncan, 191 F.3d 569, 575 (5th Cir.1999). In other words, when (as here) a district court explicitly adopts a PSR’s findings of fact, it may have implicitly “weighed the positions of the probation department and the defense and credited the probation department’s facts.” Sherbak, 950 F.2d at 1099. For instance, in Duncan, this court ruled that the district court did not clearly err when it adopted a PSR’s finding that fifty kilograms of cocaine could be attributed to a police officer complicit in a New Orleans cocaine trafficking conspiracy. 191 F.3d at 577. The officer argued that the district court’s sentence was clear error because there was no evidence that he knew of the specific quantity of drugs or that he knew that the quantity was “significant.” Id. at 575. The court rejected such arguments because the record contained evidence that the drug trafficking had lasted for an extended period of time and that the officer “fully grasped that a significant quantity of drugs was involved.” Id. at 576. The court specifically noted that Duncan’s alleged lack of awareness about the “exact quantity of drugs at issue” was unavailing because it would permit similar offenders to “avoid punishment for actual drug quantities involved through studied ignorance.” Id. at 577. In the present case, Araujo argues that he joined the conspiracy on December 20, 2006, and thus the earlier 6.4 kilograms of methamphetamine is not attributable to him as relevant conduct. It is true that the court did not explicitly rule on when Araujo joined the conspiracy, and the PSR did contain errors regarding both the apartment key in Araujo’s possession and the surveillance outside of the apartment complex. The government itself concedes—and we agree—that “an express finding of when a defendant joined a con- spiraey and what was foreseeable is preferred.” However, as noted above, this court has often recognized that a district court adopting a PSR need not make a “cate-ehismic regurgitation of each fact determined” and that implicit findings are not clear error when there is no need to “second-guess” the basis for the sentencing decision. In the present case, the district court’s ruling that the additional 6.4 kilograms were foreseeable and within the scope of his agreement appears plausible in light of the record as a whole. The record here shows that Araujo was a full participant in the methamphetamine transaction on December 20, suggesting that he had familiarity with the process of such a drug transaction. He was seen leaving the apartment complex and possessed a key to apartment 305, the apartment that had stored methamphetamine and contained the television box, “nor Carolina” travel directions, scales, and firearms. This apartment’s probable proximity to apartment 301, which contained the $142,897, also makes it plausible that Araujo had some involvement with the high volume of methamphetamine sales that garnered that large sum of money. Modesto, Araujo’s brother, was also in apartment 301 at the time the officers searched it, yet he was living in apartment 305; such inter-apartment movement suggests a strong link between the two apartments by a member of Araujo’s family. In this way, the district court’s finding here is comparable to that of the court in Duncan, where the various pieces of evidence in the record “amply support[ed] the finding that Duncan fully grasped that a significant quantity of drugs was involved.” Similarly, the various pieces of evidence in the record amply support the finding that Araujo was involved in the conspiracy when it sold 6.4 kilograms of methamphetamine. Indeed, the district court either implicitly rejected Araujo’s attorney’s claim that he had only recently joined the conspiracy or, if it accepted that Araujo was a recent participant, implicitly found that the 6.4 kilograms had been sold in a “recent” transaction. The district court thus did not clearly err. IV. CONCLUSION For the foregoing reasons, we AFFIRM the judgment of the district court. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . The court reduced the sentence from that recommended in the PSR because it granted Araujo's other objection regarding acceptance of responsibility. . Araujo preliminarily asserts that criminal liability in a conspiracy is a distinct determination from the amount of drugs attributable as relevant conduct to a conspirator at the time of sentencing. The government does not contest this point, and this court has often recognized this distinction. See, e.g., United States v. Scurlock, 52 F.3d 531, 540 (5th Cir.1995) ("[A] sentencing court cannot assume that all acts of each participant in a jointly undertaken criminal activity were reasonably foreseeable to all participants.”); United States v. Puig-Infante, 19 F.3d 929, 942 (5th Cir.1994) (”[R]easonable foreseeability does not follow automatically from proof that the defendant was a member of the conspiracy." (internal quotation marks and alteration omitted)).

BRYSON, Circuit Judge. This is an appeal from a decision of the Court of Veterans Appeals (now the Court of Appeals for Veterans Claims), denying the appellant’s application for legal fees and expenses under the Equal Access to Justice Act, 28 U.S.C. § 2412. We reject the appellant’s constitutional and statutory arguments over which we have jurisdiction, and we therefore affirm the decision of Court of Veterans Appeals. I Appellant Stephen L. Heifer filed a claim for service-connected disability compensation for certain acquired psychiatric disorders, including post-traumatic stress disorder. In 1995, the Board of Veterans’ Appeals denied his claim, and he appealed to the Court of Veterans Appeals. While his appeal was pending, the Secretary of Veterans Affairs adopted a new set of criteria for evaluating mental disorders and amended or adopted several regulations relating to disability claims. In particular, the Secretary adopted the diagnostic criteria for post-traumatic stress disorder found in the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). In January 1997, the Secretary filed his brief in this case with the Court of Veterans Appeals. In that brief, the Secretary acknowledged that DSM-IV set forth the applicable standard for diagnosing post-traumatic stress disorder and noted that Mr. Heifer was rated under a prior, superseded version of the DSM. Nonetheless, the Secretary argued that the decision of the Board of Veterans’ Appeals denying benefits to Mr. Heifer should be affirmed because, even though there was no dispute that Mr. Heifer was suffering from post-traumatic stress disorder, he had failed to produce sufficient evidence that his condition was service-connected, ie., that he had experienced any stressors while he was in service that could have triggered post-traumatic stress disorder. In March 1997, the Court of Veterans Appeals decided Cohen v. Brown, 10 Vet. App. 128 (1997), in which the court held that a remand to the Board of Veterans’ Appeals was necessary to allow the Board to ensure that the claimant received consideration under the most favorable version of the DSM. Mr. Heifer’s counsel promptly called the Cohen case to the court’s attention; counsel urged that Cohen might be pertinent to his arguments for remand on some of the issues on appeal, but that it did not affect his arguments for reversal on one of the issues raised on appeal. In June 1997, the Court of Veterans Appeals vacated the decision of the Board of Veterans’ Appeals in Mr. Heifer’s case and remanded the case to the Board for readjudication. The court noted that in deciding Mr. Heifer’s case the Board had used earlier editions of the Diagnostic and Statistical Manual of Mental Disorders. In accordance with the Cohen decision, the court ruled that Mr. Heifer was entitled to receive the benefit of the most favorable version of the DSM. Several months later, Mr. Heifer filed an application with the Court of Veterans Appeals for an order requiring the government to reimburse the attorney fees and expenses he had incurred in connection with his appeal to the court. The government responded that although Mr. Heifer was the prevailing party in the Court of Veterans Appeals, he was not entitled to recover under the Equal Access to Justice Act (EAJA) because the government’s position before the court was substantially justified. Mr. Heifer contended that the government’s position before the court was not substantially justified, because the government had faded to apprise the court of the adoption of DSM-IV as the applicable authority for the diagnosis of mental disorders, and had failed to modify its litigating position after the issuance of the Cohen decision in March 1997. The court denied Mr. Heifer’s application. II This court has only limited jurisdiction to review rulings of the Court of Appeals for Veterans Claims. Our jurisdictional statute, 38 U.S.C. § 7292, authorizes us to decide “all relevant questions of law,” but provides that except to the extent that an appeal presents a constitutional issue, we may not review “(A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d). Cognizant of our narrow jurisdictional mandate, Mr. Heifer has, in the main, presented his case as a constitutional challenge and a request for an interpretation of a statutory provision. To the extent that he contends, apart from his constitutional claim and his statutory construction arguments, that the Court of Veterans Appeals erred in holding that the government’s position in the litigation before the Court of Veterans Appeals was substantially justified, we lack jurisdiction to address that question. See Stillwell v. Brown, 46 F.3d 1111, 1113 (Fed.Cir.1995). We therefore confine ourselves to the constitutional question and the question of statutory interpretation to which Mr. Heifer devotes most of his attention. A Mr. Heifer’s constitutional argument is that by ruling against him as it did, the Court of Veterans Appeals deprived him of a property interest without due process of law. Much of his argument on this point hints that because the court was mistaken in ruling against him, he was deprived of property (attorneys fees and expenses) to which he was entitled (because he should have been awarded them), without due process of law (ie., without a correct adjudication of his rights). To the extent that he has simply put a “due process” label on his contention that he should have prevailed on his ÉAJA claim, his claim is constitutional in name only. Thus, when Mr. Heifer contends that the Court of Veterans Appeals violated his constitutional rights by “ignorfing] mandatory authority that compelled a finding that the Secretary’s position was not justified,” he is really arguing the merits of his EAJA claim, not raising a separate constitutional contention. We do not have jurisdiction to consider whether the Court of Veterans Appeals was mistaken when it concluded that the Secretary’s position before that court was substantially justified, and Mr. Heifer’s characterization of that question as constitutional in nature does not confer upon us jurisdiction that we otherwise lack. To the extent that Mr. Heifer raises a constitutional argument separate from his contention that the court erred in denying his EAJA claim, that argument is within the scope of our jurisdiction. ■ Under 38 U.S.C. § 7292(a), a party to a case before the Court of Appeals for Veterans Claims, may obtain a review of the court’s decision “with respect to the validity of any statute or regulation ... or any interpretation thereof ... that was relied on by the Court in making the decision.” Consistent with subsection (a) of the statute, subsection (c) gives us “exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof brought under this section, and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision.” 38 U.S.C. § 7292(c). Although we have jurisdiction to consider Mr. Heifer’s constitutional claim, we conclude that it is without merit. Based on Penny v. Brown, 7 Vet.App. 348 (1995), and other similar cases, Mr. Heifer argues that the Court of Veterans Appeals has adopted a legal rule that when the Secretary does not alter his litigating position despite an intervening change in the law that renders his position untenable, the Secretary’s position cannot be substantially justified. According to Mr. Heifer, this case falls within the scope of that legal rule, and when the Court of Veterans Appeals failed to apply that rule to his case and failed to explain why it was not doing so, it denied him due process. The short answer to Mr. Heifer’s constitutional argument is that the authorities he cites do not control this case. In each of the cases on which Mr. Heifer relies, the Secretary urged the affirmance of a Board decision notwithstanding clearly contrary, governing precedent. In that setting, the Court of Veterans Appeals held that the Secretary’s position was not substantially justified. In Mr. Heifer’s case, by contrast, the Cohen precedent did not necessarily foreclose an affirmance of the Board’s decision, because the Secretary’s assertion that there was insufficient proof of service connection did not depend on the version of the DSM that was used as the standard for assessing his condition or determining whether his condition had an in-service origin. The Secretary’s position was not that the principal alleged stressors on which Mr. Heifer relied were insufficient to produce post-traumatic stress disorder, but that the Board of Veterans’ Appeals had found the evidence insufficient to establish that those alleged stres-sors had actually occurred. Because it was reasonable for the Secretary to argue that affirmance was not legally foreclosed in Mr. Heifer’s case, there is no necessary inconsistency between the court’s ruling on Mr. Heifer’s EAJA claim and the court’s rulings in each of the prior cases he cites. Thus, even assuming that an unexplained departure from prior precedent in an identical case may rise to the level of a due process claim under some circumstances, Mr. Heifer’s argument falls with its premise, since Mr. Heifer’s case is substantially different from those on which he relies. B Mr. Heifer’s second argument is that the Court of Veterans Appeals misinterpreted EAJA by shifting the burden to him to show that the Secretary’s position was not substantially justified, rather than requiring the Secretary to demonstrate that his position was substantially justified. We have jurisdiction to consider this argument, as well as the following one, because they constitute challenges to the interpretation of a statute, not simply challenges “to a law or regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2). On the merits, there is no indication that the court misinterpreted the statute and shifted the burden of proof on the substantial justification issue to Mr. Heifer. The court simply pointed out that Mr. Heifer’s arguments about why the Secretary’s position was not substantially justified were unpersuasive. For a court to note the weaknesses in one party’s arguments does not mean that it is treating that party as bearing the burden of proof. Instead, the court’s observations may simply provide the reasons the court has concluded that the opposing party has satisfied its burden. Absent any indication that the court placed the burden of proof on Mr. Heifer with respect to the issue of substantial justification, we hold that the court committed no legal error in that respect. C Finally, Mr. Heifer argues that in concluding that the Secretary’s position before the court was substantially justified, the Court of Veterans Appeals improperly relied on Mr. Heifer’s concession that the Secretary’s position was justified during the time the case was before the Board. The court, however, did not base its “substantial justification” ruling on Mr. Heifer’s concession regarding the reasonableness of the Secretary’s position before the Board. The court merely observed that there was no dispute that the Secretary’s position before the Board was justified, and that the Secretary’s failure to cite the Cohen case while Mr. Heifer’s appeal was pending before the Court of Veterans Appeals did not render the Secretary’s position unjustified. That was simply a way of focusing on the particular point to which Mr. Heifer directed his claim — the Secretary’s failure to cite the Cohen case to the Court of Veterans. Appeals. The court’s characterization did not constitute or reflect a legal error in applying the Equal Access to Justice Act. Finding no legal error that is within our jurisdiction to review, we uphold the decision of the Court of Veterans Appeals. AFFIRMED.

MEMORANDUM ORDER LEISURE, District Judge: On April 11, 1990, the Court issued a Memorandum Order (the “April 11 Order”) quashing a subpoena served by defendant Giuseppe Gambino (“Gambino”) on Dennis M. Culnan (“Culnan”), a reporter for the New Jersey Courier Post. In support of his subpoena, defendant Gambino had alleged that Culnan possessed information tending to show that electronic surveillance conducted by the government at the Caffe Giardino was illegal. Although the Court ruled in the April 11 Order that Gambino had not made the required showing to compel the testimony of Culnan, or the production of Culnan’s notes to Gambino, the Court ruled that an in camera inspection of Culnan’s notes was appropriate. The Court stated that “an in camera inspection would best satisfy the competing concerns for protecting the work product of journalists against public disclosure, and developing the facts relevant to Gambino’s suppression motion.” April 11 Order, at 5-6. On April 17, 1990, Culnan filed a motion for reargument of the Court’s order for an in camera inspection pursuant to Local Rule 3(j). Gambino filed a cross-motion for rear-gument, alleging that the Court should not have quashed the subpoena in the April 11 Order, and, in the alternative, that Culnan should be required to be present for questioning by the Court when the in camera inspection took place. In general, motions for reargument will be granted only if the Court overlooked “matters or controlling decisions” which, if considered by the Court, would have mandated a different result. See Litton Industries Inc. v. Lehman Brothers Kuhn Loeb Inc., 1989 WL 162315, 1989 U.S. Dist. LEXIS 9145, at 9-10 (S.D.N.Y.1989); Moll v. U.S. Life, 700 F.Supp. 1284, 1286 (S.D.N.Y.1988) (Leisure, J.); Bozsi Limited Partnership v. Lynott, 676 F.Supp. 505, 509 (S.D.N.Y.1987). The interest of courts in the finality of their decisions is important, yet it is clear that “the ‘law of the case’ does not rigidly bind a court to its former decisions, but is addressed only to its good sense.” Higgins v. California Prune & Apricot Grower, Inc., 3 F.2d 896, 898 (2d Cir.1924) (Hand, L., J.). If a court believes a prior ruling to be incorrect, the only just and sensible course is to change the prior ruling and proceed with the litigation. On April 19, 1990, the Court issued an Order and Opinion 734 F.Supp. 1084, denying Gambino’s motion to suppress the fruits of electronic surveillance at the Caffe Giardino (the “April 19 Opinion”). Though Culnan’s motion for reargument with regard to the April 11 Order had been filed by that time, the Court did not want to delay issuance of the April 19 Opinion due to the upcoming trial date of certain of Gambino’s co-defendants who had joined in his suppression motion. The Court stated that it would modify the April 19 Opinion if the in camera inspection went forward and probative evidence was discovered in Cul-nan’s notes. See April 19 Opinion, 734 F.Supp. at 1089 n. 4. The holding and reasoning of the Court’s April 19 Opinion is central to consideration of the pending motion for reargument. In the April 19 Opinion, the Court ruled that confidential informant William Kane’s involvement in the installation and maintenance of surveillance devices in the Caffe was not illegal under either Title III or the U.S. Constitution. April 19 Opinion, 734 F.Supp. at 1088-93. The Court also held that Gambino had not shown that unauthorized electronic surveillance had taken place in the Caffe prior to March 1988, and that, in any case, there was no evidence whatsoever of a lack of good faith on the part of the government in executing the authorization orders necessary for suppression pursuant to United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). April 19 Opinion, 734 F.Supp. at 1095-97. In a footnote, the Court stated that its specific interest in Culnan’s notes was to verify whether electronic surveillance took place at the Caffe Giardino prior to March 1988, the date of Judge Costanti-no’s initial authorization order. April 19 Opinion, 734 F.Supp. at 1089 n. 4. Culnan makes two basic arguments in support of his motion for reargument. First, he claims that the April 11 Order is self-contradictory, as it holds on the one hand that Gambino did not make the required showing of materiality needed to enforce his subpoena ad testificandum and duces tecum, and on the other hand, it holds that an in camera inspection of Cul-nan’s notes is warranted. Second, Culnan argues that the holding and reasoning of the Court’s April 19 Opinion, rendered after the decision to conduct an in camera inspection, vitiates any need for further factual discovery into his- notes. Each argument will be considered in turn. Culnan’s first argument is premised on the assumption that the showings required to enforce a subpoena ad testifican-dum and duces tecum against a journalist, and to order an in camera inspection of a journalist’s notes, are similar. It is not necessary to discuss this point in detail or to make a formal ruling, as the Court finds that Culnan’s second argument is meritorious. The Court does believe, however, that in camera inspections provide a useful intermediate step between full disclosure and total nondisclosure. The Court does not doubt the chilling effects created by the potential for in camera inspections. However, that effect must by necessity be less than created by full disclosure. At the same time, the Court can gain valuable factual information which may bear on a criminal defendant’s guilt or innocence. The privilege must be carved with a mind to competing policy interests in order to remain a realistic and respected rule of law. Culnan’s second argument is meritorious. The Court has stated that its only interest in Culnan’s notes at this time is to determine whether unauthorized bugging took place at the Caffe Giardino prior to March 1988. See April 19 Opinion, 734 F.Supp. at 1089 n. 4. After full reflection on the factual and legal issues before it, however, the Court determined in the April 19 Opinion that Gambino had put forward no evidence that government agents executed Judge Costantino’s authorization orders without a good faith reliance on their validity. Such a showing would be necessary for suppression of the intercepted conversations pursuant to United States v. Leon, supra, 468 U.S. 897, 104 S.Ct. 3405. It is certain that “some threshold showing of materiality, relevance, and necessity should be required [before conducting an in camera review],” New York Times Co. v. Jascalevich, 439 U.S. 1331, 1335, 99 S.Ct. 11, 14, 58 L.Ed.2d 38 (1978) (citations omitted). The Court’s partial reliance on United States v. Leon in the April 19 Opinion has raised and broadened the threshold of materiality needed to justify an in. camera inspection of Culnan’s notes. As the Court held in the April 19 Opinion, Gambino’s theory of a government scheme actively to mislead Judge Costantino as to prior electronic surveillance at the Caffe Giardino is not borne out by any credible facts before the Court. April 19 Opinion, 734 F.Supp. at 1096-97. In reconsidering the April 11 Order in light of the final holding and reasoning of the April 19 Opinion, the Court does not believe that any such facts would be found in Culnan’s notes. The Court hereby grants Culnan’s motion for reargument, and vacates the portions of the April 11 Order which required an in camera inspection. Gambino’s motion for reargument must be denied. No new assertions of fact or law have been placed before the Court which mandate a detailed reconsideration of the April 11 Order. Based on the April 11 Order, the April 19 Opinion, and the reasoning of this Memorandum Crder, the Court hereby reaffirms its decision to quash the subpoena ad testificandum and duces tecum served by Gambino on Cul-nan. CONCLUSION Culnan’s motion for reargument is granted. The portions of the Court’s April 11, 1990 Memorandum Order requiring an in camera inspection of any and all of Cul-nan’s notes regarding electronic surveillance at the Caffe Giardino is vacated. Gambino’s cross-motion for reargument is denied. SO ORDERED . To overcome the first amendment privilege, a party attempting to subpoena the notes or testimony of a journalist must show that the information sought is "highly material or relevant, necessary or critical to the maintenance of the claim, and not obtainable from other sources." United States v. Burke, 700 F.2d 70, 77 (2d Cir.1983).

Opinion for the Court filed by Circuit Judge RANDOLPH. Opinion concurring in the judgment filed by Circuit Judge KAREN LeCRAFT HENDERSON. RANDOLPH, Circuit Judge: Hotel and Restaurant Employees, Local 25, AFL-CIO, appeals from the judgment of the district court vacating an arbitration award in Local 25’s favor. We reverse. In July 1992, the Madison Hotel laid off its bus employees, abolished the bus employee classification, and reassigned the bus duties to the Hotel’s waiters. The layoff prompted a dispute with Local 25, the union representing the Hotel’s food and beverage employees. The dispute proceeded to arbitration. In a January 1994 opinion, the arbitrator found that the Hotel “violated the layoff, seniority and classification provisions of the [collective bargaining agreement], ... insofar as it eliminated completely the Bus Employee classification, laid off all of the Bus Employees and transferred the substantial remaining Bus Employee duties to the Waiters, in the absence of a demonstrated legitimate business reason____” J.A. 31. The arbitrator directed the Hotel “to reinstate the [bus employees] to their former positions and to make them whole for all losses, including seniority, attributable to their improper layoff.” J.A. 36. When all of the laid-off bus employees indicated that they no longer sought reinstatement to their former positions, the Hotel claimed the matter was at an .end. Invoking the arbitration award, Local 25 insisted that the Hotel restore the bus employee classification and hire new employees to fill the positions. . The parties returned to the arbitrator for clarification, whereupon the arbitrator explained that his award required the Hotel “to reinstate the Bus Employee classification ... [,] to fill the number of Bus Employee positions ... which existed at the time of the layoff and to operate with such Bus Employee classifications until it. can demonstrate an appropriate basis, under the [collective bargaining agreement], to abolish such positions.” J.A. 49. The Hotel then sued to vacate the award. The district court granted summary judgment in the Hotel’s favor. Among other things, the district court found that, because the original grievance was filed “on behalf of’ the bus employees, arbitration extended only to whether the rights of those employees had been violated; accordingly the arbitrator exceeded his authority in ordering the Hotel to restore the bus classification. Madison Hotel v. Hotel & Restaurant Employees Local 25, 955 F.Supp, 1 (D.D.C.1996). We believe the district court had no adequate basis for disagreeing with the arbitrator’s view of what was before him for decision. In his first opinion, the arbitrator framed the dispute this way: “Whether the Hotel violated the Agreement by its abolishment of the Bus Employee position, its transfer of the duties of the Bus Employees to other positions and its layoff of the Grievants in July 1992 and, if so, what is the appropriate remedy?” J.A 19. Given this statement, the arbitration encompassed not only the propriety of the Hotel’s laying off the bus employees, but also its abolishing the bus classification and transferring the bus employees’ duties to the waiters. The “scope of the arbitrator’s authority is itself a question of contract interpretation that the parties have delegated to the arbitrator.” W.R. Grace & Co. v. Local Union 759, Int’l Union of United Rubber, Cork, Linoleum & Plastic Workers of America, 461 U.S. 757, 765, 103 S.Ct. 2177, 2182-83, 76 L.Ed.2d 298 (1983). An arbitrator’s view of the issues submitted to him for arbitration therefore receives the samé judicial deference as an arbitrator’s interpretation of a collective bargaining agreement. See, e.g., Sheet Metal Workers’ Int’l Ass’n Local Union No. 359 v. Madison Indus., 84 F.3d 1186, 1190 (9th Cir.1996); Richmond, Fredericksburg & Potomac R.R. v. Transportation Communications Int’l Union, 973 F.2d 276, 280 (4th Cir.1992); El Dorado Technical Servs., Inc. v. Union General De Trabajadores de Puerto Rico, 961 F.2d 317, 321 (1st Cir.1992); Lattimer-Stevens Co. v. United Steelworkers of America, Dist. 27, Sub-Dist. 5, 913 F.2d 1166, 1170 (6th Cir.1990); Mobil Oil Corp. v. Independent Oil Workers Union, 679 F.2d 299, 302 (3d Cir.1982); Waverly Mineral Prods. Co. v. United Steelworkers of America, Local No. 8290, 633 F.2d 682, 685-86 (5th Cir.1980). The Hotel has identified nothing to cast the slightest doubt on the arbitrator’s judgment about the scope of this arbitration. The Hotel conceded at oral argument that there is no record of any formal “submission” of issues for arbitration. As is commonplace in arbitration proceedings, the scope of the isr sues developed informally during the course of the parties’ presentations. See, e.g., Elkouri & Elkouri, How Arbitration Works 323-24 (5th ed.1997). The Hotel never objected to the arbitrator’s framing of the issue in his first written opinion, and it said so at oral argument. A copy of Local 25’s initial grievance letter to the Hotel, submitted to us on appeal, recites the union’s objection to the Hotel’s layoff of one of the bus employees. The letter’s caption reads, “Re: Bus Employees/Local 25 Members,” and its first sentence states: “This is to advise you that the Hotel & Restaurant Employees Local 25, AFL-CIO, pursuant to our collective bargaining agreement is opposing and taking to arbitration the action taken by your establishment against the above-captioned employee.” We place no weight on this letter. As both parties now concede, the letter did not purport to encompass all the questions the parties intended to place before the arbitrator; its function was to set the informal arbitration process in motion. Quoting from the first paragraph of the arbitrator’s opinion, the district court thought it significant that Local 25 had initiated arbitration “on behalf of’ the former bus employees, the theory being that the only permissible remedy could run to them. The quoted language will not bear the weight the district court placed on it. From the second paragraph of his opinion onward, the arbitrator treated the Hotel’s unilateral abolishment of the bus employee classification as a chief topic of dispute between the parties. This firmly indicates what the parties be.lieved they were arbitrating, arid what the arbitrator believed he had been called upon to resolve. The district court also found that the arbitrator’s June 1996 final award “did not draw its essence frorri the collective bargaining agreement.” Madison, 955 F.Supp. at 3. The Hotel thinks this is correct because the arbitrator improperly considered some contractual provisions while ignoring others, and because he imposed “extra-contractual” obligations on the Hotel. Of course, an arbitration award that fails to draw its essence from the collective bargaining agreement cannot stand. See United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960). While courts therefore may review the substance of an arbitration award, only the narrowest cir eumstances mil justify setting the award aside. An arbitrator cannot, for instance, “render[ ] a judgment based on external legal sources, wholly without regard to the terms of the parties’ contract.” American Postal Workers Union v. United States Postal Serv., 789 F.2d 1, 8 (D.C.Cir.1986). Nor can an arbitrator simply ignore the contract and “dispense his own brand of industrial justice.” Enterprise Wheel, 363 U.S. at 597, 80 S.Ct. at 1361. But if an arbitrator was “arguably construing or applying the contract,” a court must defer to the arbitrator’s judgment. United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 370-71, 98 L.Ed.2d 286 (1987). Courts “have no business ... determining whether there is particular language in the written instrument which will support the claim” submitted for arbitration. United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 568, 80 S.Ct. 1343, 1346-47, 4 L.Ed.2d 1403 (1960). The arbitrator’s June 1996 final remedy falls well within the bounds of this deferential standard. In a series of thorough opinions explicitly considering the relevant contract provisions, the arbitrator decided upon the remedy of restoring the bus classification. That the arbitrator gave more weight to some provisions—such as the seniority and classification provisions—and less weight to others—such as the Management Rights Clause—than the district court or the Hotel might have preferred is not a permissible basis for vacating the award. It should hardly need repeating that “courts have no business overruling [an arbitrator] because their interpretation of the contract is different from his.” Enterprise Wheel, 363 U.S. at 599, 80 S.Ct. at 1362; see United States Postal Serv. v. National Ass’n of Letter Carriers, 789 F.2d 18, 20 (D.C.Cir.1986). The “parties having authorized the arbitrator to give meaning to the language of the agreement,”- courts' cannot “reject [the] award on the ground that the arbitrator misread the contract.” Misco, 484 U.S. at 38, 108 S.Ct. at 370-71. As to the Hotel’s complaint about the arbitrator’s imposing “extra-contractual” obligations, it is well-established that the “labor arbitrator’s source of law is not confined to the express provisions of the contract.” United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960). The parties’ past practice, the “industrial common law” of the hotel business, the structure of the contract as a whole—all of these matters could be properly considered by the arbitrator in interpreting the contract and formulating the award. See id. at 581-82, 80 S.Ct. at 1352-53; Enterprise Wheel, 363 U.S. at 597, 80 S.Ct. at 1361; American Postal Workers, 789 F.2d at 5; see generally Elkouri & Elkouri, supra, at 470-515. An arbitrator’s familiarity and experience with such matters is commonly acknowledged as one of the primary considerations favoring judicial deference to arbitration awards. See, e.g., Warrior & Gulf, 363 U.S. at 582, 80 S.Ct. at 1352-53. In this case it is enough to sustain the award that the arbitrator, permissibly drawing on the sources just mentioned as well as on the explicit provisions of the contract itself, “purport[ed] to be interpreting the contract” in rendering his final decision. Utility Workers Union of America, Local 246 v. NLRB, 39 F.3d 1210, 1216 (D.C.Cir.1994). The district court erred in concluding that the arbitrator’s final remedy exceeded the scope of the issues presented to him for arbitration and did not draw its essence from the collective bargaining agreement. Accordingly, the decision of the district court is reversed. So ordered. . This question—the scope of the submission to the arbitrator—should not be confused with the question of arbitrability—whether the employer ánd the union agreed in the collective bargaining agreement to put a particular issue to arbitration. The latter question is reviewed by a federal court de novo. See, e.g., Williams v. E.F. Hutton & Co., 753 F.2d 117, 119 (D.C.Cir.1985); Davis v. Chevy Chase Fin. Ltd., 667 F.2d 160, 166-67 (D.C.Cir.1981). The former, as we have just indicated, is not. . Counsel for the Hotel acknowledged that the submission “was an oral submission to the arbitrator which is set forth in his opinion.” When the Court asked whether this meant that "the submission” could only be defined by reference to "the arbitrator's definition of the grievance and the issue," counsel answered, "That's correct.” . The Court: “Where is it, in all these documents, that you say to the arbitrator, 'Hey, you can’t arbitrate the abolishment of the classification’?” Counsel: "We haven't set that out.” The Court: "Was there some argument ... in the arbitration where you said to the arbitrator ..., 'You're not understanding this correctly, that's not before you'?” Counsel: "No Your Honon” . Counsel for Local 25 stated that the "letter ... is not regarded as a jurisdictional type of document,” that it "was sent to the employer to initiate the proceedings,” and that "there is absolutely nothing -in the parties’ contract which says that that letter ... defines the limits of the arbitrator's authority in a subsequent case.” Counsel for the Hotel agreed, noting that "the first step in the [arbitration] process is the filing of a grievance, which is what this letter is,” and that the grievance letter "just gets us to the arbitration arena.” KAREN LeCRAFT HENDERSON, Circuit Judge, concurring in the judgment: I agree that the district court should be reversed but on the narrow ground that the Hotel failed to object before the arbitrator to restoration of the eliminated bus positions— the issue on which Local 25 sought clarification. See 12/14/94 Letter from Union Requesting Clarification from Arbitrator (JA 87-89). By not objecting to submission of the restoration issue to the arbitrator, the Hotel waived its right to challenge in court the scope of the submission and the arbitrator’s authority thereunder to resolve the issue. Cf. Davis v. Chevy Chase Fin. Ltd., 667 F.2d 160, 165 (D.C.Cir.1981) (finding no waiver because party “did ... raise the arbitrability question” before arbitrator “with full reservation of his right to have the arbitrator’s determination subjected to judicial review’’); see also United, Industrial Workers v. Government of the Virgin Islands, 987 F.2d 162, 168 (3d Cir.1993) (“[Because arbitrators derive their authority from the contractual agreement of the parties, a party may waive its right to challenge an arbitrator’s authority to decide a matter by voluntarily participating in an arbitration and failing to object on the grounds that there was no agreement to arbitrate.”); Jones Dairy Farm v. Local No. P-1236, United Food & Commercial Workers Int’l Union, 760 F.2d 173, 175 (7th Cir.), cert. denied, 474 U.S. 845, 106 S.Ct. 136, 88 L.Ed.2d 112 (1985); George Day Constr. Co. v. United Bhd. of Carpenters & Joiners of Am., Local 35b, 722 F.2d 1471, 1475-76 (9th Cir.1984); Piggly Wiggly Operators’ Warehouse, Inc. v. Piggly Wiggly Operators’ Warehouse Indep. Truck Drivers Union, Local No. 1, 611 F.2d 580, 584 (5th Cir.1980). Once the bus positions were restored, they became, as the arbitrator observed unexceptionably, “subject to being filled as vacancies in accordance with the [Collective Bargaining] Agreement.” 6/6/96 Clarification Letter at 3 (JA 43) (quoting 2/6/95 Clarification Letter at 3 (JA 40)). The arbitrator was therefore justified in directing the Hotel to “fill” and “operate with” the restored busing positions “until it can demonstrate an appropriate basis under the Agreement, to abolish such positions.” Id. at 9.(JA 49). Given the Hotel’s waiver, there is no need to explore here the metes and bounds of arbitral authority, as the majority has done. Since the majority has chosen to do so, however, I will respond briefly. First, it should be noted that our circuit is not always eager to enforce arbitration agreements so strictly. See Cole v. Burns Int’l Sec. Servs., 105 F.3d 1465, 1489 (D.C.Cir.1997) (holding arbitration ágreement binding on Title VII plaintiff only if employer agrees to pay arbitration costs). Second, I do not agree with the majority’s assertion that there is “nothing to cast the slightest doubt on the arbitrator’s judgment about the scope of this arbitration.” Majority Op. at 4. The arbitrator’s first decision, on the merits, treated the arbitration as having been brought on behalf of and to provide a remedy for the named grievants only—a view the arbitrator acknowledged in each of the clarification letters. See 2/6/95 Clarification Letter at 2 (JA 39) (“The Arbitrator notes that the remedy set forth in the [January 2, 1994] Opinion contemplated reinstatement of, and a make whole award to, the identified Grievants only. That is, nothing in this Arbitration proceeding raised, or was intended to resolve, any issue with respect to any potential remedy to any individuals other than the identified Grievants.”) (emphasis added); 6/6/96 Clarification Letter at 8 (JA 48) (“[I]t is correct that the Arbitrator, in finding the violation, balanced Management’s right to manage, including the right to determine staffing, against the Grievants’ seniority rights____”) (emphasis added). The ten- or of the merits decision presumably reflects the intent of the parties at that time, as expressed in their briefs and at the hearing. And the scope of an arbitrator’s authority is limited to those subjects the parties intend to submit to arbitration. See Williams v. E.F. Hutton & Co., 753 F.2d 117, 119 (D.C.Cir.1985) (“There is no duty to arbitrate matters not subject to the arbitration agreement, and no authority on the part of arbitrators to consider matters not .necessary to the resolution of disputes actually submitted.”) (citing Davis, 667 F.2d at 165) (emphasis added); Washington-Baltimore Newspaper Guild, Local 35 v. Washington Post Co., 442 F.2d 1234, 1236 (D.C.Cir.1971) (“In determining the scope of an arbitrator’s authority we look to two sources: the collective bargaining agreement, and the submission of the parties to the arbitrator.”) (emphasis added); Matteson v. Ryder Sys. Inc., 99 F.3d 108, 114 (3d Cir.1996) (“[T]he touchstone for interpreting a submission must be the intention of the parties.”). If an arbitrator oversteps the authority delegated by the parties, it is the duty of the reviewing court to rein him in. See Matteson v. Ryder Sys. Inc., 99 F.3d at 113-15 (reversing arbitral decision “[b]ecause the [arbitral tribunal] exceeded its authority as arbitrator by deciding issues not submitted to it by the [parties]”); John Morrell & Co. v. Local Union 304A of the United Food & Commercial Workers, 913 F.2d 544, 559-61 (8th Cir.1990) (affirming district court determination that arbitral decision was beyond scope of issues submitted because appellate court was “satisfied that the arbitrator was not ‘even arguably ... acting within the scope of his authority5 ”), cert. denied, 500 U.S. 905, 111 S.Ct. 1683, 114 L.Ed.2d 78 (1991); Bowater Carolina Co. v. Rock Hill Local Union No.1924, 871 F.2d 23 (4th Cir.1989) (directing district court to vacate decision on issue not submitted by parties); Courier-Citizen Co. v. Boston Electrotypers Union No. 11, 702 F.2d 273, 280-81 (1st Cir.1983) (vacating district court order enforcing back pay award to employee not mentioned in submission). Nonetheless, because the Hotel faded to object before the arbitrator to the expanded scope of the arbitration, it has waived any right to do so now. . In opposing Local 25's clarification request, the Hotel’s counsel argued only that the arbitra-tor lacked authority to fill the restored, but vacant, positions. See Letter from Hotel Counsel to Arbitrator in Opposition to Union Clarification Letter at 1 (JA 90) (whether "the hotel must hire new buspersons to fill the classification" "is not before the arbitrator”). . Waiver was not argued to the initial panel.

ORDER After a jury trial, Jeffery Carter was convicted of distributing crack, see 21 U.S.C. § 841(a)(1), and the district court sentenced him to 180 months in prison. Carter filed a notice of appeal, but his appointed counsel now seeks to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he cannot discern a nonfrivolous basis for appeal. Because counsel’s supporting brief is adequate, we limit our review to the potential issues identified in counsel’s brief and Carter’s Circuit Rule 51(b) response to his lawyer’s motion to withdraw. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). In 2007 police arrested Carter after monitoring a drug deal between Carter and an informant, Tremaine Gilmore. Gilmore had called Carter to arrange to buy two ounces of crack. Police drove Gilmore to the street corner where he had agreed to meet Carter, and Gilmore phoned Carter to complete the deal. Carter told Gilmore that he was sending a woman wearing a blue jogging suit to deliver the drugs. The police then saw a female (who was a minor) fitting that description, arrested her, and confiscated two bags of crack. The police also arrested Carter, who was nearby, and seized the keys in his possession. After Carter’s arrest, police officers weighed the crack seized from the girl as 55.96 grams. A forensic analyst in the Wisconsin State Crime Lab, however, weighed it at 38.1678 grams, and later testified at trial that the difference could have resulted from a loss of moisture. The police also found guns and more drugs in the home of Lakesha Lampkin, whose keys Carter had been found possessing. The government indicted Carter on four counts. In Count I—the only count involving Carter’s drug sale to Gilmore—the government charged Carter with selling 50 grams or more of crack. See 21 U.S.C. § 841(a)(1). In Counts II and III, related to the guns and drugs found in Lampkin’s home, Carter was charged with possessing crack with the intent to sell it, see id., and for being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1). In Count IV, the government charged Carter with selling crack in an unrelated incident in 2005. A jury convicted Carter on the first count, but found that he distributed less than 50 grams of crack. It acquitted him of the second and third counts. On the fourth count, the jury was unable to reach a verdict, and after the court declared a mistrial, the government dropped the charge. At sentencing the government argued that in determining Carter’s sentencing range, the district judge should consider the conduct charged under counts two through four, even though the jury had not found Carter guilty beyond a reasonable doubt on those charges. The judge refused, and a probation officer calculated Carter’s offense level using a drug quantity between 35 grams and 50 grams, resulting in a base offense level of 28. See U.S.S.G. § 2D1.1(c)(6). After a two-point increase for using a minor to commit the offense, see U.S.S.G. § 3B1.4, the probation officer calculated Carter’s offense level to be 30. Based on his criminal history category of V, Carter’s guidelines range was 151 to 188 months, and the judge sentenced him to 180 months’ imprisonment. Counsel and Carter first consider whether Carter could argue that the evidence was insufficient to support Carter’s conviction on the first count. We would uphold a jury?s verdict if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Squibb, 534 F.3d 668, 671 (7th Cir.2008) (internal quotation marks omitted). To convict Carter on the first count, “the government had to establish two elements: (1) that he knowingly distributed ... cocaine base and (2) that he knew that what he was distributing was a controlled substance.” 21 U.S.C. § 841(a)(1). United States v. Graham, 315 F.3d 777, 781 (7th Cir.2003). We agree with counsel that the government presented sufficient evidence for a rational trier of fact to find Carter guilty of knowingly distributing crack: Gilmore testified that he had arranged to purchase two ounces of crack from Carter and that Carter had told him to expect a girl in a blue jogging suit; several police officers testified about the details of the transaction, including the arrest of the delivery girl wearing the jogging suit holding two ounces of crack; police officers testified that they arrested Carter near the location of the would-be sale; and law enforcement agents testified that the substance was, in fact, crack. Carter responds that many of the government witnesses had something to gain from testifying against him, and thus their testimony was not credible. But credibility is the province of the jury, and it could rationally reject an argument that the witnesses should not be believed. See United States v. Bailey, 510 F.3d 726, 734 (7th Cir.2007) (holding that the fact that a witness cooperated in exchange for a shortened prison sentence is insufficient to upset a jury’s decision to credit the testimony). Carter also argues that because he was acquitted of possessing the guns and drugs found at Lampkin’s home, he is innocent on Count I, but the conduct underlying those two counts is unrelated to the conduct for which he was convicted on Count I, the sale of drugs to Gilmore. Counsel next considers whether Carter could argue on appeal that he received ineffective assistance of counsel. But a claim of ineffective assistance of counsel should not be raised on direct appeal unless ineffectiveness is apparent from the trial record. Here counsel can point to nothing within the record to support a claim for ineffective assistance of counsel. United States v. Recendiz, 557 F.3d 511, 531 (7th Cir.2009). Thus any argument on direct appeal that Carter’s counsel was ineffective would be pointless. Carter and counsel also consider whether Carter could challenge the calculation of his guidelines range. Carter maintains that the district court miscalculated his criminal history score by improperly using the guideline for prior convictions for contempt of court—U.S.S.G. § 4A1.2(c)(l)—to add points to his score for his prior conviction for bail jumping. This too is a frivolous argument because the district court did not even use § 4A1.2(c)(l) in computing Carter’s criminal history. Rather, it properly calculated Carter’s criminal history using § 4A1.2(k), based on Carter’s pri- or revocation of probation, to which the guideline expressly applies. Counsel also raises the possibility that Carter could challenge the four-point increase in his offense level for the use of a minor, based on Carter’s assertion that he did not know that she was under 18. We agree with counsel that this argument, too, would necessarily fail: knowledge is not required for an enhancement under § 3B1.4. See United States v. Ceballos, 302 F.3d 679, 697 (7th Cir.2002). Carter also maintains that, after the sentencing judge rejected the government’s request to find that he was responsible for selling more than 50 grams of crack, the judge erred by failing to explain the reasons for finding him responsible for selling between 35 grams and 50 grams of crack. This argument would be frivolous because the record makes clear that the judge based his finding on the weight calculated by the forensic analyst at the Wisconsin State Crime Lab: over 38 grams. Carter also argues that district court erred in failing to apply retroactively the reduced offense levels for crack offenses. See U.S.S.G. § 2D1.1, Supp. to App. C 226-31 (2008) (Amendment 706). This is also a frivolous argument because Carter was sentenced under the 2007 guidelines that already included the reduced offense levels for crack. Compare U.S.S.G. § 2Dl.l(c)(5) (2006) (base offense level of 30 for 35 to 50 grams of crack) with U.S.S.G § 2Dl.l(c)(6) (2007) (level of 28 for same amount). Finally counsel considers whether Carter could challenge the reasonableness of his sentence. But Carter’s guidelines sentence is presumptively reasonable. See United States v. Cano-Rodriguez, 552 F.3d 637, 638 (7th Cir.2009). Furthermore, the district court justified its sentence with reasons that adhere to the relevant considerations under 18 U.S.C. § 3553(a), and counsel can point to nothing that might arguably rebut the presumption of reasonableness. See United States v. Gordon, 513 F.3d 659, 666 (7th Cir.2008). We therefore GRANT counsel’s motion to withdraw and DISMISS the appeal.

ORDER ON PETITION FOR REHEARING Petition for rehearing in United States v. Hammad, 846 F.2d 854 (2d Cir.1988) (Kaufman, Cardamone and Pierce, Circuit Judges). Denied Before KAUFMAN, CARDAMONE and PIERCE, Circuit Judges. IRVING R. KAUFMAN, Circuit Judge: The panel’s unanimous opinion, filed May 12, 1988, addressed the concerns raised by the government’s petition for rehearing. While we do not customarily set forth reasons for denial of a petition for rehearing, because the briefs submitted by petitioners and amici curiae evince some confusion as to the thrust of our opinion in Hammad, we provide the following clarification. As we stated in our opinion, DR 7-104(A)(1) “ ‘would not require that government investigatory agencies refrain from all use of informants to gather information.’ ” United States v. Hammad, 846 F.2d 854, 860 (2d Cir.1988) (quoting United States v. Jamil, 707 F.2d 638, 645 (2d Cir.1983)). To the contrary, the opinion expressly assures a prosecutor’s ability to utilize informants to gather facts for law enforcement purposes — subject to ethical and legal restrictions. Thus, when a prosecutor “authorized by law” employs legitimate investigative techniques and conducts his inquiry in accordance with DR 7-104(A)(l), the use of an informant to gather information will be protected. The concerns raised in the government’s petition for rehearing were appropriately weighed in Hammad. It follows that there is no reason to alter the text of the opinion to cover hypothetical cases in futu-ro. Accordingly, the government’s petition for rehearing should be denied.

PER CURIAM: Dr. Joan E. Jackson appeals the district court’s order granting summary judgment in favor of the Honorable Peter Geren, Acting Secretary, Department of the Army, on her claim for retaliation pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (2000). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Jackson v. Geren, No. 8:07-cv-00851-AW (D.Md. Nov. 14, 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.

ORDER Richard Warren used a classic Ponzi scheme in trying to defraud a hedge fund out of $25 million. The fund manager jumped at the chance to earn a return of 80 to 100 percent in a few weeks by investing in what Warren described as a no-risk program overseen by the Federal Reserve. The fund got its money back only after federal investigators intervened. Eventually a jury found Warren guilty on 11 counts of wire fraud, see 18 U.S.C. § 1343, and the district court sentenced him to a total of 200 months in prison. Warren, who is pro se, argues in this direct appeal that the district court lacked both personal and subject-matter jurisdiction because he is a “citizen of GOD’s Kingdom and not of Earth.” He made the same frivolous argument 42 times in papers filed in the district court, to no avail. District courts have subject-matter jurisdiction over any indictment charging a federal crime, 18 U.S.C. § 3231; United States v. Roberts, 534 F.3d 560, 568 (7th Cir.2008); United States v. Hernandez, 330 F.3d 964, 977-78 (7th Cir.2003), as well as personal jurisdiction over any defendant brought before the court to answer an indictment, United States v. Burke, 425 F.3d 400, 408 (7th Cir.2005); United States v. Jones, 983 F.2d 1425, 1428 n. 6 (7th Cir.1993). And since Warren raises no other challenge to his convictions or sentence, the judgment of the district court is AFFIRMED.

PER CURIAM: Petitioner Jean Gilíes Joseph (“Petitioner”), a Haitian citizen, asks this Court to review an order of the Board of Immigration Appeals (“BIA”) denying his application for asylum, withholding of removal, and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). The BIA’s opinion affirming the Immigration Judge’s (“IJ”) order was supported by substantial evidence that Petitioner did not offer credible support of his asylum application. No reversible error has been shown; we affirm. Petitioner appeals the BIA’s decision to affirm the IJ decision denying his application for asylum, withholding of removal, and CAT relief. Petitioner has abandoned his CAT claim by failing to argue the issue on appeal. Petitioner contends that the IJ clearly erred when it found that he had not proved past persecution or a reasonable fear of future prosecution: he alleges, he was attacked, beaten, and threatened because he refused to divulge the whereabouts of his uncle, who was a member of a political party. “We review only the [BIA’s] decision, except to the extent that it expressly adopts the IJ’s opinion. Insofar as the [BIA] adopts the IJ’s reasoning, we will review the IJ’s decision as well.” Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.2001). Here, the BIA issued its own opinion with analysis and also adopted the IJ’s reasoning. Therefore, we review the decisions of both the IJ and the BIA. We review legal determinations of the IJ and the BIA de novo. D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir.2004). We review factual determinations under the highly deferential substantial evidence test, which requires us to “view the record evidence in the light most favorable to the agency’s decision and draw all reasonable inferences in favor of that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir.2004). We must affirm the BIA’s decision “if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole.” D-Muhumed, 388 F.3d at 818 (quotation omitted). An alien who seeks asylum carries the burden of proving statutory refugee status. Najjar, 257 F.3d at 1284. To carry this burden, the alien must present specific and credible evidence to establish (1) past persecution on account of a statutorily listed factor or (2) a “well-founded fear” that the statutorily listed factor will cause future persecution. 8 C.F.R. § 208.13(a), (b); Najjar, 257 F.3d at 1287. A “well-founded fear” of persecution may be established by showing (1) past persecution that creates a rebuttable presumption of a “well-founded fear” of future persecution, (2) a reasonable possibility of future personal persecution that cannot be avoided by relocating within the subject country, or (3) a pattern or practice in the subject country of persecuting members of a statutorily defined group of which the alien is part. 8 C.F.R. § 208.13(b)(1), (2). An alien who seeks withholding of removal carries the burden of showing that it is more likely than not that, if returned to his country, his life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1231(b)(3). An applicant who fails to meet the lower “well-founded fear” of persecution burden for asylum usually fails to meet the “more likely than not” standard required to qualify for withholding of removal. Rivera v. U.S. Att’y Gen., 487 F.3d 815, 820-21 (11th Cir.2007). We have explained that “[n]ot all exceptional treatment is persecution.” Gonzalez v. Reno, 212 F.3d 1338, 1355 (11th Cir.2000). Persecution requires “more than a few isolated incidents of verbal harassment or intimidation, and ... harassment does not amount to persecution.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir.2005) (internal quotations omitted). This Court has upheld agency decisions that petitioners failed to prove past persecution in cases where petitioners had been temporarily detained and suffered injuries that required hospitalization. See Zheng v. U.S. Att’y Gen., 451 F.3d 1287 (11th Cir.2006); Djonda v. U.S. Att’y Gen., 514 F.3d 1168 (11th Cir.2008). Petitioner sought asylum and withholding of removal because he was attacked and threatened by a violent mob. The mob wanted information about Petitioner’s uncle, who is a member of “Together to Save Haiti,” a political group. Petitioner is not a member, and Petitioner’s uncle is not a leader. Petitioner’s uncle has since fled Haiti. Both the IJ and the BIA found insufficient nexus between the harm suffered by Petitioner and a statutorily protected ground: the attackers were seeking Petitioner’s uncle, not Petitioner. The IJ and BIA also agreed that insufficient evidence supported Petitioner’s claim that his uncle’s political opinion was imputed to Petitioner. Based on the evidence and viewing the record in the light most favorable to the agency’s decision, substantial evidence supports the IJ’s and the BIA’s finding that Petitioner was not persecuted on account of a statutorily protected ground. The BIA properly considered all of the evidence when it adopted the IJ’s opinion and added its own analysis. Both the BIA and the IJ properly determined that, because Petitioner did not meet the less stringent test for asylum, he also did not meet the more demanding test for withholding of removal. Petitioner has not demonstrated reversible error in the BIA’s decision or the IJ’s decision; accordingly, we affirm. AFFIRMED.

OPINION PER CURIAM. Jovan Carter pleaded guilty to possession with intent to distribute cocaine base and being a felon in possession of a firearm, and the district court sentenced him in accordance with a mandatory minimum sentence that was enhanced based on a prior drug conviction. Carter argues on appeal that the government failed to comply with the statutory requirements that must be met before the enhanced mandatory minimum may apply. For the following reasons we conclude that the district court did not plainly err in sentencing Carter according to the enhanced mandatory minimum. I. Carter was indicted on four counts and ultimately pleaded guilty to two of them: possession with intent to distribute cocaine base, 21 U.S.C. § 841(a)(1), and being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). After the plea hearing but before sentencing, Carter absconded. Fourteen months later the police captured him, and he was sentenced on January 16, 2008. At the sentencing hearing, the district court determined that the applicable advisory guideline range was between 210 and 262 months, based on a total offense level of 34 and a criminal history category of IV. A violation of § 841(a)(1) carries a mandatory minimum of 120 months, unless the offender has a prior drug conviction, in which case the mandatory minimum doubles to 240 months. 21 U.S.C. § 841(b)(1)(A). The presentence report listed a 1999 conviction in Ohio state court for possession of cocaine, and therefore Carter’s drug charge carried a “mandatory minimum sentence of 240 months, which would be the advisory guideline sentence in this matter.” The court agreed that the 240 month mandatory minimum applied, and Carter did not object. The court sentenced him to 240 months on both counts, to run concurrently, followed by ten years of supervised release. Carter now appeals his sentence. II. The basis for this appeal is the fact that the enhanced 240 month mandatory minimum sentence does not automatically apply to a defendant just because he has a prior drug conviction; the government must first put the defendant on notice that it plans to seek such an enhancement: No person who stands convicted of an offense under [21 U.S.C. § 841] shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon. 21 U.S.C. § 851(a)(1). “The requirements delineated in § 851 are mandatory, and a district court cannot enhance a defendant’s sentence based on a prior conviction unless the government satisfies the requirements.” United States v. Odeneal, 517 F.3d 406, 415 (6th Cir.2008). Carter argues that the government failed to file the requisite § 851 information, and so the enhanced 240-month mandatory minimum should not apply to him. The sufficiency of an § 851 information is a question of law that we ordinarily review de novo, Odeneal, 517 F.3d at 415, but because Carter failed to object, we review his sentence for plain error. United States v. Gonzalez, 512 F.3d 285, 288 (6th Cir.2008). “A forfeited ‘plain error’ may be corrected by the appellate court only if it ‘affects substantial rights’ and ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’ ” Id. (citations omitted). Although the requirements of § 851 are mandatory, “it is also well-settled precedent in this Circuit and its sister circuits that section 851 “was designed to satisfy the requirements of due process and provide the defendant with reasonable notice and an opportunity to be heard regarding the possibility of an enhanced sentence for recidivism.’ ” United States v. Pritchett, 496 F.3d 537, 548 (6th Cir.2007) (citing United States v. King, 127 F.3d 483, 489 (6th Cir.1997)). Our § 851 analyses uniformly strive to “avoid elevating form over substance,” King, 127 F.3d at 489, so the resolution of this claim turns on the practical consideration of whether Carter was provided with adequate notice that the government intended to rely on his prior drug conviction to enhance his sentence, and an opportunity to be heard regarding the same. In our view, he was. The government concedes that it did not file a separate information, but argues that it effectively satisfied § 851’s notice requirements through various portions of the plea agreement and plea hearing. Paragraph 2(A) of the plea agreement provides: For the reason that Mr. Carter has a final, felony drug conviction in his history, the maximum statutory penalties to which Mr. Carter will be exposed by virtue of his plea of guilty to Count Five is imprisonment for twenty years to life ... and at least ten years supervised release [21 U.S.C. § 841(b)(1)(C) ]. (alteration in original). Paragraph 7 again references the enhanced penalty: 7. § 851 Information A. The United States alleges that Mr. Carter was convicted of Possession of cocaine, a third degree felony under Ohio Revised Code 2925(11) in the Court of Common Pleas for Summit County, Ohio. The defendant was represented by counsel and plead [sic] guilty to this offense on February 2, 1999, in case number CR 1998 11 2972. He was sentenced in an order of the Court of Common Pleas on March 2,1999. B. The defendant agrees that he was convicted as alleged in paragraph 7.A. above. Furthermore, during the plea hearing the district court reviewed the plea agreement in detail with Carter, confirming that he understood “that the maximum possible statutory penalty for [the § 841(a)(1) drug charge] is imprisonment of 20 years to life.” The court also brought to Carter’s attention paragraphs 7(A) & (B) of the plea agreement, reprinted above, and Carter acknowledged that he had, in fact, been convicted of the crime discussed therein. In light of (1) the repeated emphasis in the plea agreement and plea hearing on a sentence of twenty years to life; (2) the statement in paragraph 2(A) of the plea agreement that he was receiving this twenty year sentence “[f]or the reason that” he had a prior drug conviction, (3) the paragraph in the plea agreement entitled “ § 851 Information,” (4) the unequivocal reference in that same paragraph to Carter’s prior drug conviction, and (5) Carter’s opportunity to dispute that conviction during the plea hearing, we hold that it was not plain error for the district court to determine that the requirements of § 851 were satisfied, and sentence Carter accordingly. III. The judgment is affirmed.

PER CURIAM: Darrell Barnes appeals from the revocation of his supervised release and the imposition of an eight-month prison term to be followed by a fifty-two-month term of supervised release. Barnes’ attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), concluding that there were no meritorious issues for appeal but questioning the length of the supervised release term. Although informed of his right to do so, Barnes has not filed a pro se supplemental brief. We affirm. When a court revokes supervised release and imposes a term of imprisonment, it may also reimpose a term of supervised release. 18 U.S.C. § 3583(h) (2006). “The length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release.” Id. Thus, when the district court revoked Barnes’ supervised release and imposed an active prison term of eight months, it had the authority to impose up to fifty-two months of supervised release (sixty month statutory maximum based upon Barnes’ underlying convictions minus eight months). See United States v. Maxwell, 285 F.3d 336, 342 (4th Cir.2002). In accordance with Anders, we have examined the entire record in this case and found no meritorious issues for review. Accordingly, we affirm the district court’s judgment. This court requires that counsel inform his client, in writing, of his right to petition the Supreme Court of the Unit ed States for further review. If the client requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel’s motion must state that a copy thereof was served on the client. 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.

JUDGMENT PER CURIAM. This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by appellant. See Fed. R.App. P. 34(a)(2); D.C. Cir. Rule 34(3). It is ORDERED AND ADJUDGED that the district court’s order filed February 4, 2009, 2009 WL 255863, be affirmed. The district court did not abuse its discretion in dismissing appellant’s complaint without prejudice for noncompliance with Fed. R.Civ.P. 8(a). See, e.g., Ciralsky v. CIA, 355 F.3d 661, 668-69 (D.C.Cir.2004). Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C. Cir. Rule 41.

PER CURIAM: Elio Vazquez, appointed counsel for Cesar Nahum Montufar in this direct criminal appeal, has moved to withdraw from further representation of the appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record reveals that counsel’s assessment of the relative merit of the appeal is correct. Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and Montufar’s conviction and sentence are AFFIRMED.

MEMORANDUM Baljit Kumar, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir.2004), and we deny the petition for review. Substantial evidence supports the agency’s adverse credibility determination based on Kumar’s admission that he made false statements regarding incidents of past persecution to immigration officials in the United Kingdom, see Al-Harbi v. INS, 242 F.3d 882, 889-90 (9th Cir.2001) (changing story regarding incidents of past persecution supported adverse credibility finding), and his submission of a fraudulent document that goes to the heart of his claim, see Desta v. Ashcroft, 365 F.3d 741, 745 (9th Cir.2004) (use of fraudulent documents supported adverse credibility finding). In the absence of credible testimony, Kumar has failed to establish that he is eligible for asylum or withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003). Because Kumar’s CAT claim is based on the same evidence the agency found not credible, and he points to no other evi dence to show it is more likely than not he would be tortured if returned to India, his CAT claim fails. See id. at 1157. PETITION FOR REVIEW DENIED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

PER CURIAM. DECISION Farouk Elkassir, an employee of the General Services Administration (“GSA”), filed a whistleblower complaint, known as an Individual Right of Action, with the Merit Systems Protection Board. He sought corrective action for the GSA’s having rated his performance for October 1, 2006, through November 30, 2007, as “fully successful” rather than “outstanding.” He alleged that the agency assigned him the lower rating in retaliation for a protected disclosure that he made concerning alleged misconduct by others in the agency. The Board denied his request for corrective action. We reverse and remand. BACKGROUND Mr. Elkassir works for GSA’s Inventory Management and Commodity Support Branch in the agency’s Office Supplies Acquisition Center in New York City. His duties include writing the item purchase descriptions (“IPDs”) for items that the Acquisition Center purchases, including the IPD for bulletin boards. The events at issue in this case began in September 2007, when a shipment of bulletin boards was delivered to GSA’s warehouse in French Camp, California. After inspecting the bulletin boards, a GSA quality assurance specialist recommended rejecting them on the ground that “the bulletin board’s frame is made of pine wood with a reddish mahogany color” while “per IPD requirements item’s frame is to be made of oak wood.” After the quality assurance specialist filled out the notice of inspection, a chain of emails ensued. First, an administrative contracting officer contacted the bulletin board vendor to inform the company of the pending rejection. In response, the vendor forwarded an email from its supplier, which had stated that the bulletin boards “are indeed oak, not pine. The only difference is the color of the stain.” After receiving that email, the quality assurance specialist forwarded it to Mr. Elkassir and the contracting officer along with the comment that “[t]he boards are actually particle board with a reddish color laminate, the color is very dark it could be an imitation oak laminate. The IPD states oak wood, not imitation oak or oak laminate. If you want me to rescind please make the appropriate modification to the IPD.” Mr. Elkassir responded by stating, “The boards should be oak wood as stated in the IPD. If they are not oak wood, they should be returned, but you have to be sure.” The quality assurance specialist then forwarded the same email to Mr. Elkassir’s second level supervisor, the branch chief, noting that the bulletin boards are “rejected status because it is not IAW [in accordance with] the IPD” and asking the branch chief if he should nonetheless make the bulletin boards available for issue. The branch chief then forwarded the email to the section chief asking, “Can we let this one go, because we [have] so many back-orders on this item. Material will be posted and gone with[in] on[e] day.” The section chief subsequently forwarded the email chain to Mr. Elkas-sir’s team leader with the note: “Pis for your immediate (backorders) action. Pis contact [the quality assurance specialist].” Mr. Elkassir’s team leader then wrote an email to the quality assurance specialist stating, “I have reviewed the IPD and have determined that the IPD will be modified to accept the delivered product. The laminate additive does not fall within the ‘Form, Fit, or Function’ attributes that would prevent the issuance of the product. In view of, it is recommended that product be released from hold status.” Upon receiving that email, the quality assurance specialist released the hold on the bulletin boards and said that they were ready for issue. Mr. Elkassir responded to the last email by reporting the situation to his third-level manager, the director of operations. In an email to the director, Mr. Elkassir stated, “[T]he management of my group (QSDA-BA) has again violated the rules of contracting by issuing a deviation to [the vendor] allowing the acceptance of pinewood bull[e]tin boards instead of oakwood, without going through the contracting officer, and without charging [the vendor] the difference in cost.” Mr. Elkassir also stated his belief that “the government has lost thousands of dollars in this action.” In addition, Mr. Elkassir referred to his team leader’s having suggested that the IPD would be modified, remarking, “I am not in favor of changing the IPD, since it is a far far better way to supply our customers with Oakwood boards than pine as pine might lead many customers to buy the boards elsewhere. Again GSA will lose more money.” Mr. Elkassir’s email to the director was written on October 10, 2007. The director reacted to Mr. Elkassir’s email by asking the contracting officer about the details of what had been done, whereupon the contracting officer responded by noting that (1) the vendor had asserted that the wood was oak, (2) the Inventory and Commodity Support Branch requested that the product be approved “due to many backorders,” (3) the contracting officer had not modified the IPD, and (4) the contracting officer would have supported the quality assurance specialist’s finding that the bulletin boards should be rejected for not meeting the IPD. The director then replied to Mr. Elkassir, informing him that the IPD had not been modified and that the vendor “is supplying oakwood.” Mr. Elkassir answered the director’s email by pointing out that the quality assurance specialist had in fact stated that the bulletin boards were made of pine wood. On November 8, 2007, Mr. Elkassir received a performance appraisal for the October 1, 2006, through November 30, 2007, rating period in which he was rated Level 3 (fully successful) and was not rated Level 5 (outstanding). He then filed a complaint with the Office of Special Counsel alleging that his performance rating was lowered in retaliation for his having emailed the director about the bulletin boards. The Office of Special Counsel informed Mr. Elkassir that it would be unable to take any action regarding the complaint. The office explained, “The primary reason for our determination not to take action on your complaint was the fact that we were unable to establish a connection between your lowered performance evaluation and your whistleblowing activity.” Mr. Elkassir then filed an Individual Right of Action complaint with the Merit Systems Protection Board seeking corrective action under the "Whistleblower Protection Act, 5 U.S.C. § 2302 et seq. The administrative judge who was assigned to the case first noted that an employee who alleges that he has been retaliated against in violation of the Whistleblower Protection Act must demonstrate that he has made a disclosure protected under 5 U.S.C. § 2302(b)(8), which includes any disclosure of information that the employee reasonably believes evidences, among other things, “a gross waste of funds.” As the administrative judge noted, “the proper test is this: could a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee reasonably conclude that the actions of the government evidence gross mismanagement?” Lachance v. White, 174 F.3d 1378, 1381 (Fed.Cir.1999); see also Drake v. Agency for Int’l Devel, 543 F.3d 1377, 1380 (Fed.Cir.2008). The administrative judge also pointed out that the employee does not have to prove actual wrongdoing in order to establish that he had a reasonable belief that his disclosure is in a protected category. Id. In discussing the reasonableness of Mr. Elkassir’s belief that the email he sent had revealed wrongdoing, the administrative judge pointed out that Mr. Elkassir had no personal knowledge about the composition of the bulletin boards. Based on that fact, the administrative judge concluded that Mr. Elkassir’s assertion that the government had lost money, and would continue to lose money, was unsupported. The administrative judge also noted that Mr. El-kassir’s email was “fraught with factual errors.” In particular, the administrative judge found that although Mr. Elkassir’s email suggested that the vendor was issued a deviation from the contract, no deviation was actually issued, and that although Mr. Elkassir’s email suggested that the deviation had been issued “without going through the contracting officer,” the contracting officer was actually aware of what was being done with respect to the bulletin boards. Similarly, the administrative judge determined that Mr. Elkassir’s criticism of “the management of his group” for failing to recoup costs from the vendor lacked merit because only the contracting officer could recoup such costs. Finally, the administrative judge concluded that, in light of the relatively small size of the contract, Mr. Elkassir’s statement that the government had “lost thousands of dollars in this action” was baseless. In light of the errors in the email, the administrative judge concluded that Mr. Elkassir could not reasonably have believed that the email revealed wrongdoing. For that reason, the administrative judge concluded that Mr. Elkassir had not made a protected disclosure. The administrative judge therefore denied his request for corrective action. Mr. Elkassir now seeks review by this'court. DISCUSSION The administrative judge articulated the correct test for determining whether an employee has made a protected disclosure, as set forth in Lachance. The judge, however, erred in the application of that test. Mr. Elkassir was privy to a series of emails containing conflicting statements about whether the bulletin boards were made of oak or pine. While the agency’s quality assurance specialist had initially said that they were pine, the vendor insisted that they were made of oak. In response to that assertion, the quality assurance specialist stated, “The boards are actually particle board with a reddish color laminate.” While the administrative judge is correct that Mr. El-kassir had no personal knowledge about the composition of the bulletin boards, in that he never inspected them himself, Mr. Elkassir need not demonstrate that an actual violation occurred in order to prevail on a whistleblowing retaliation claim. See Drake, 543 F.3d at 1382. Instead, the proper question is whether Mr. Elkassir could reasonably have thought that a violation had occurred. Here, the question is whether a disinterested observer with knowledge of the email chain could reasonably conclude that the bulletin boards were not made of oak and that by accepting them the agency had committed wrongdoing. The quality assurance specialist stated that the bulletin boards were made of pine and that, in fact, they consisted of particle board with what might be an imitation oak laminate. After Mr. Elkassir advised the quality assurance specialist that he had “to be sure” that the bulletin boards were not made of oak, the quality assurance specialist rejected the bulletin boards as not being in accordance with the IPD. Under those circumstances, it was not unreasonable for Mr. Elkassir to represent to his superiors that the product was apparently not made of oak, as was required by the IPD. As to whether a contract “deviation” had been improperly authorized by the management of his group without the approval of the contracting officer, Mr. Elkassir’s email was sent shortly after he received an email from the team leader stating that “the IPD will be modified to accept the delivered product.” In light of that email, it was reasonable for Mr. Elkassir to believe that the team leader had authorized a deviation, and apparently without the approval of the contracting officer. The fact that no modification was issued does not render Mr. Elkassir’s belief, at the time he wrote the email, unreasonable. Nor is it important that, as things turned out, the contracting officer was aware of what was being done with respect to the bulletin boards. Finally, the administrative judge was correct in concluding that the loss to GSA from the particular contract that was the subject of the emails would not amount to “thousands of dollars,” as the contract was only for a total of $1920.52. However, Mr. Elkassir’s reference to the loss to GSA was not, by its terms, limited to the particular contract discussed in the emails, but appeared to refer to the change to the IPD, which would affect other contracts in the future. Again, Mr. Elkassir’s concern about the potential financial effect of the change, even if presented only as rough approximation, does not appear to be “baseless.” Applying the proper legal test, the undisputed facts presented to the administrative judge lead to the conclusion that Mr. Elkassir made a protected disclosure when he emailed the director of operations on October 10, 2007. We therefore reverse the decision of the Merit Systems Protection Board with respect to that element of Mr. Elkassir’s whistleblower retaliation claim and remand for the Board to determine whether the remaining elements of the claim have been established.

ORDER BATTISTI, District Judge. This action was initiated in 1973 on behalf of the plaintiff class of all black students in Cleveland Public Schools and their parents to remedy the intentional segregation of students by race. This segregation was caused by actions of state and local officials, undertaken in violation of the Fourteenth Amendment to the United States Constitution. Following trial and a finding of liability in 1976, the Court, in 1978, ordered a remedy to the Constitutional violations. The remedy commenced in 1979. Thereafter, the Court established deadlines for full compliance with the remedy (e.g., Order of June 28, 1982). The deadlines were not met. For more than ten years, the Court, no less the plaintiff class and the community at large, has waited for Defendants to remedy their Constitutional violations by complying with the Court’s Remedial Orders, and to present evidence to that effect. The endurance of the Plaintiffs, the tolerance of the Court and, it would seem, the patience and understanding of the entire community have been tried during this period. Since at least April of 1988, members of Defendant Cleveland Board of Education have made repeated public statements regarding their intentions to move the Court for a determination of the status of compliance with its Orders. No such motion has been filed. Plaintiffs have correctly taken the position that Defendants must come forward and bear the burden of demonstrating that they have complied fully with Court Orders. Whatever the respective parties’ motives, however, there has been no significant movement during the past several years to advance the lawsuit procedurally toward its ultimate resolution. A rather simple, but fundamental, factual question in Reed v. Rhodes remains: Have the Defendants complied with the Court’s Remedial Orders? The Court sees little reason why such factual inquiry and determination (in either the affirmative or negative) ought not proceed forthwith. If Defendants are not prepared to go forward, they should say so and refrain from making pronouncements that only confuse, frustrate and traumatize the community. Concern for the community’s interest in expeditious resolution of this matter persuades the Court to initiate a first step. See, e.g., Brown v. Board of Education, 349 U.S. 294, 299-300, 75 S.Ct. 753, 755-756, 99 L.Ed. 1083 (1955); Columbus v. Penick, 443 U.S. 449, 470, 99 S.Ct. 2982, 2983, 61 L.Ed.2d 666 (1979) (Stewart, J., concurring). As outlined below, the parties must prepare to present evidence relevant to Defendants’ compliance with the Court’s Remedial Orders. Defendants, of course, continue to bear the burden of demonstrating their compliance with Remedial Orders. Evaluation of evidence will proceed more expeditiously if it is received and evaluated in an orderly process by one familiar with the details of the Defendants’ day-to-day activities pertaining to the Court’s Remedial Orders. The Office on School Monitoring and Community Relations (“OSMCR”) was charged by Order of May 4, 1978 with responsibility “to observe, assess and report on the progress of the desegregation of the Cleveland Public Schools and to foster public awareness and understanding of the desegregation process.” As a regular part of its duties, OSMCR has tracked the various Remedial Orders, gathered, cat-alogued, and commented upon the periodic compliance reports prepared and submitted by the Defendants, and, from time to time, made reports to the Court and parties on the pace of remedial implementation and related matters. More than any other single entity, OSMCR is a repository of accurate information relevant to Defendants’ compliance with Remedial Orders. Additionally, OSMCR is a creation of the Court, has earned its trust and is not a litigant with adversarial viewpoints or responsibilities. NOW, THEREFORE, BE IT ORDERED: 1. Counsel for the parties are directed to meet and confer with the Director of OSMCR, Daniel J. McMullen, Esq. (“Director”), on or before July 20, 1990 in order to devise an orderly process pursuant to which OSMCR shall receive and evaluate evidence from the parties relevant to Defendants’ compliance with Remedial Orders, and solicit evidence on matters related closely thereto. If Defendants are not prepared to go forward, their counsel should communicate that fact clearly at such meeting. Otherwise, a proposal describing the process shall be submitted to the Court by OSMCR on or before August 1, 1990. 2. Pursuant to the foregoing process, and not later than December 1, 1990, the Director shall prepare and circulate among the parties a draft report on remedial implementation. Each party may prepare and submit to the Director, within fifteen (15) days after receipt thereof, such comments on the draft report as it deems appropriate. 3. On or before February 1, 1991, the Director shall prepare and submit to the Court a report on remedial implementation, including proposed findings as to Defendants’ compliance with Remedial Orders and comments and recommendations on the need for continued Court oversight, possible termination of certain extant Remedial Orders and other matters related closely thereto. 4. The parties and their counsel are directed to cooperate with OSMCR in carrying out the foregoing duties, including preparing and submitting any data or reports requested as a necessary incident of this assignment. 5. In view of the foregoing, and until further order of this Court, OSMCR is hereby relieved of submitting Quarterly Compliance Reports, as required by Order of December 9, 1987. IT IS SO ORDERED.

MEMORANDUM OPINION AND ORDER WOODS, District Judge. Plaintiff brought the instant suit alleging discrimination in employment in violation of Title VII, 42 U.S.C. § 2000e et seq., on the basis of his race, his sex, and his physical handicap. The case is before the Court on defendant’s Motion for Summary Judgment. I. Plaintiff is a Program Systems Computer Analyst with the Internal Revenue Service Detroit Computing Center. In May of 1987, plaintiff applied for the position of Supervisory Computer Systems Analyst. Fourteen candidates, including plaintiff, were qualified as eligible for the position. These candidates were then ranked by a ranking panel, and those candidates who received a score of 21 or higher from the panel were classified as “Highly Qualified.” The top five candidates, each of whom received a score of 23 or higher, were classified as “Best Qualified,” and these five individuals were interviewed by the Selecting Official. A white female, aged 43, was chosen for the Supervisory Computer Systems Analyst position. Plaintiff received only an 18 from the ranking panel, and, accordingly, he was not interviewed by the Selecting Official for the position. After pursuing and exhausting his administrative remedies as to the non-selection, plaintiff filed the instant complaint, alleging that his non-selection was due to unlawful discrimination. The government has now filed this motion. II. In order to establish a prima facie case under McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny, plaintiff must establish that he was a member of a protected group, that he was not selected for a position for which he applied and for which he was qualified, and that the employer selected another candidate not a member of the protected group. The government con cedes, for the purposes of this motion that plaintiff has sustained this initial burden. Accordingly, the defendant must articulate a legitimate, nondiscriminatory reason for its hiring decision, and the final burden shifts to the plaintiff to demonstrate that the articulated reason is pretextual. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). “The ultimate burden of proving that discrimination against a protected group has been caused by a specific employment practice remains with the plaintiff at all times.” Gagne v. Northwestern Nat. Ins. Co., 881 F.2d 309 (6th Cir.1989), quoting Wards Cove Packing Co. v. Atonio, — U.S. -, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989) (emphasis in original). In the instant case, the agency’s stated reason for not selecting plaintiff for the position of Supervisory Computer Systems Analyst is that plaintiff failed to make the “Best Qualified” list of candidates, and thus his name was not even furnished to the Selecting Official. The government claims that the Selecting Official’s determination to choose someone other than the plaintiff could not have been based on an impermissible motive inasmuch as plaintiff’s name simply was not among those furnished to the Selecting Official. In order to have been rated as “Best Qualified,” plaintiff would have had to obtain higher scores on either or both of two previous evaluations performed by the defendant agency: the Job Element Appraisal (administered in February of 1987) or the Report of Managerial Potential (administered in June of 1987). Plaintiff received only “unremarkable” scores on these two evaluations, and based on that fact, he received a score of only 18 on the selection ranking. Therefore, his name was never furnished to the Selecting Official as an appropriately “Best Qualified” candidate to be interviewed for the Supervisory Computer Systems Analyst position. The Court finds that this is a legitimate, nondiscriminatory reason for the Selecting Official’s failure to choose plaintiff for the supervisory position, as well as for the ranking panel’s failure to recommend him to the Selecting Official. Plaintiff has raised no evidence to show that this reason is pretextual, or that the Selecting Official or ranking panel’s decision was otherwise tainted with discriminatory animus. Accordingly, plaintiff has failed to carry his burden of showing that his non-selection was due to unlawful discrimination. III. Plaintiff next claims that those previous evaluations were tainted by discrimination, and thus that they tainted the selection ranking. However, it appears that plaintiff has failed to exhaust his administrative remedies with respect to the two previous evaluations. Each of the evaluations was shared with plaintiff at the time of its preparation, as evidenced by plaintiff’s signature and date on the evaluation forms. Plaintiff did not challenge either evaluation, however, until September 17, 1987, after his non-selection for the supervisory position. Courts have held that the obligation to challenge a performance appraisal that is allegedly discriminatory arises at the time that the evaluation is issued to the employee, and a discrimination complaint is untimely if the allegation is later raised outside the limitations period upon the evaluation’s use in a promotion proceeding. Womack v. Shell Chemical Co., 514 F.Supp. 1062, 1104-05 (S.D.Ala.1981); Ka Nam Kuan v. City of Chicago, 563 F.Supp. 255 (N.D.Ill.1983). The reasoning of these cases is that it is the evaluations themselves that are alleged to be discriminatory in the absence of an allegation that they were not considered in an evenhanded fashion in the promotion process. Other cases have held that the new use of the old discriminatory evaluation is a separate discriminatory act even though the officials responsible for the promotion are unaware of the prior discrimination. See Stoller v. Marsh, 682 F.2d 971, 976-79 (D.C.Cir.1982). However, recognizing that this would create a great burden on an employer to re-investigate every factual assertion contained in an employee’s file, and recognizing that an employer should be able to rely in good faith on evaluations already in a personnel file, the Stoller court placed a limit on an employer’s potential liability: If established procedures have given an employee a reasonable opportunity to inspect the supervisory evaluations in his or her file, to challenge allegedly inaccurate materials, and to have such materials corrected or removed, and if the organization gives its employees adequate notice that these rights may be exercised, then it may rely in good faith on such evaluations in making subsequent decisions without violating Title VII. In this case, plaintiff was clearly apprised of the two evaluations at issue at the time of those evaluations, and should have challenged those evaluations at the time if he felt that they were discriminatory. Moreover, under the considerations outlined in Stoller, supra, plaintiff clearly had, and knew that he had, the right to access his personnel files and challenge material therein. These rights are outlined in the Department of Treasury’s collective bargaining agreement with the National Treasury Employees Union, copies of which are distributed to all employees. Moreover, in 1986, the plaintiff filed a grievance to have a similar document removed from his personnel records. (In fact, in the instant case, plaintiff alleges that the allegedly discriminatory evaluations were issued in part as a reprisal for his having filed this prior grievance). Accordingly, plaintiff clearly had the requisite knowledge of the avenues available to him through which to challenge his appraisal. Because plaintiff’s first contact with the EEOC was not within 30 days of the discussion with him of either evaluation, the instant suit may not encompass the February and June 1987 evaluations on which the disqualifying ranking was based. 29 C.F.R. § 1613.214(a)(l)(i). For the foregoing reasons, the Court finds that summary judgment is proper due to plaintiff’s failure to establish that defendant’s articulated reason for his non-selection was pretextual, and due to his failure to exhaust administrative remedies with regard to the evaluations which underlay the non-selection. So ordered. . The government notes that it may contest at a later date whether plaintiff has made out a prima facie case of age and handicap discrimination. . The Court notes that it is barred from hearing the retaliation claim by virtue of the fact that plaintiff has never raised it with the EEOC—his only complaints were as to race, sex, age, and handicap. See Wilcoxson v. United States Postal Service, 812 F.2d 1409 (1987).

MEMORANDUM As the master of the complaint, French chose to sue on the basis of his alleged contract with Heschong. That another remedy may have existed in the Collective Bargaining Agreement (“CBA”) does not support complete federal preemption. Livadas v. Bradshaw, 512 U.S. 107, 114 S.Ct. 2068, 129 L.Ed.2d 98 (1994). Nor does the “bare fact that a collective-bargaining agreement will be consulted” have preemptive force. Id. at 124, 114 S.Ct. 2068. French alleges four tort claims against Davis and Brace. Resolution of none of these claims requires application or interpretation of the CBA between French’s union and Beachwood Services. Federal jurisdiction was therefore lacking. The case must be returned to the state court where it properly began and belongs. Accordingly, the judgment of the district court is REVERSED and the case is REMANDED with direction to return it to the Los Angeles Superior Court where it began. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

PER CURIAM: Richard L. Rosenbaum, appointed counsel for Raynier Pupo, filed, a motion to withdraw on appeal, supported by a brief prepared pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record reveals that counsel’s assessment of the relative merit of the appeal is correct. Because independent examination of the entire record reveals no arguable issue of merit, counsel’s motion to withdraw is GRANTED, and Pupo’s conviction and sentence are AFFIRMED.

PER CURIAM: Glenn Joseph Cook appeals the sentence imposed following the revocation of his supervised release in two cases. Cook argues that the total sentence of 61 months followed by 23 months of supervised release is unreasonable given the Grade C violation of his supervised release and an advisory guideline range of three to nine months of imprisonment. Cook also argues, for the first time on appeal, that the sentence is procedurally unreasonable because the district court failed to adequately explain its reasons for the sentence and failed to provide written reasons. Therefore, appellate review of that issue is for plain error. See United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir.), cert. denied, — U.S.-, 129 S.Ct. 625, 172 L.Ed.2d 617 (2008). To show plain error, the appellant must show an error that is clear or obvious and that affects his substantial rights; if the appellant makes such a showing, the court has discretion to correct the error and will generally not do so unless it seriously affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Baker, 538 F.3d 324, 332 (5th Cir.2008), cert. denied, — U.S. -, 129 S.Ct. 962, 173 L.Ed.2d 153 (2009). Cook has not shown that the sentence imposed by the district court upon revocation of his supervised release was unreasonable. Athough the sentence exceeded the advisory guidelines range, it did not exceed the statutory maximum sentence that could be imposed upon revocation of supervised release. The district court considered the advisory guideline range, the 18 U.S.C. § 3553(a) factors, the arguments of counsel, the nature of the offense, and Cook’s history. This court will not reweigh the § 3553(a) factors. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). The district court provided adequate reasons for the sentence, including that Cook did not comply with the orders given to him by the BOP upon release and that Cook indicated he would not comply with his supervised release terms. In addition, the district court concluded that Cook is a danger to the community, because of his criminal history and events in prison, and because he threatened family members and became involved in altercations with them after his release. The district court further stated the purpose of the incarceration is to ensure the public’s safety, to provide an example and rehabilitation, and to provide punishment. Cook has not demonstrated plain error in the district court’s procedure, see Baker, 538 F.3d at 332, and the sentence imposed by the district court was neither unreasonable nor plainly unreasonable. See United States v. Hinson, 429 F.3d 114, 120 (5th Cir.2005). AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

PER CURIAM: Myron Cunningham appeals the district court’s denial of his motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 706 to the U.S. Sentencing Guidelines (“the Guidelines”), which reduced the base offense levels applicable to crack cocaine offenses. On appeal, Cunningham argues that the district court erred because: (1) it had the authority necessary to reduce his sentence under § 3582(c)(2); and (2) it failed to analyze the 18 U.S.C. § 3553(a) factors, as required by our precedent. “We review a district court’s decision whether to reduce a sentence pursuant to 18 U.S.C. § 3582(c)(2), based on a subsequent change in the sentencing guidelines, for abuse of discretion.” United States v. Williams, 549 F.3d 1337, 1338 (11th Cir.2008) (per curiam) (quoting United States v. Brown, 332 F.3d 1341, 1343 (11th Cir.2003)). “However, where the issue presented involves a legal interpretation, our review is de novo.” Id. at 1338-39 (citation omitted). A district court may modify a term of imprisonment in the case of a defendant who was sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). However, we have held that when a defendant is subject to a statutory mandatory minimum that replaces his guideline range, that defendant is ineligible for a sentence reduction under Amendment 706. Williams, 549 F.3d at 1342 (“Because Williams was subject to a statutory mandatory minimum that replaced his original sentencing guideline range, he was not sentenced according to the base offense level in § 2D1.1, even taking into account the § 5K1.1 downward departure. He thus would not fall within the scope of Amendment 706.”). In Williams, we pointed out that this ineligibility is not rectified by a downward departure below the statutory minimum when that departure is made pursuant to a § 5K1.1 motion for substantial assistance. Id. at 1341. Upon review of the record and the parties’ briefs, we find no reversible error. Because Cunningham was subject to a mandatory minimum term of life imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A), Amendment 706 did not change his guideline range, even though he ultimately received a § 5K1.1 downward departure. See id. at 1340-42. Therefore, Cunningham was ineligible for a § 3582(c)(2) sentence reduction, and we affirm the district court’s denial of his § 3582(c)(2) motion. AFFIRMED.

AMENDED SUMMARY ORDER Appellants Town of Clarkstown, Police Officer Alice Laschet, and Town of Clarks-town Police Department (collectively, the “Town”) appeal from an order (1) dismissing their cross-claims against appellees Catherines Stores Corporation and Julian Brown (collectively, “Catherines”) and ap-pellees Village of Spring Valley, Police Officers Joseph B. Brown, Rony Charles, and John Kelly, Sergeant Peter Russell, and the Village of Spring Valley Police Department (collectively “Spring Valley”); and (2) imposing sanctions on the Town’s counsel for misleading the Court and the parties, and for unreasonably multiplying the proceedings. See Taifer v. Catherines, No. 06 Civ. 2976 (S.D.N.Y. filed May 28, 2008). We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal. Pursuant to statute, we have jurisdiction to review “final decisions of the district courts.” 28 U.S.C. § 1291. “A final decision ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” In re World Trade Ctr. Disaster Site Litig., 521 F.3d 169, 178 (2d Cir.2008) (internal quotation marks omitted). The order at issue here is not a final decision on the merits because the District Court has yet to rule on plaintiffs’ claims against the Town. This order also does not fall within the class of interlocutory decisions that are immediately appealable pursuant to 28 U.S.C. § 1292(a). The Town does not contend, nor does the record indicate, that the District Court has recommended an interlocutory appeal under 28 U.S.C. § 1292(b). We therefore perceive no statutory basis for the assertion of jurisdiction over this appeal. It is true that some orders are immediately appealable—even though they are neither final decisions on the merits, nor interlocutory orders set forth in § 1292(a)—pursuant to the collateral order doctrine. This doctrine applies in cases where an appellant seeks review of an order that (1) is “effectively unreviewable on appeal from a final judgment; (2) conclusively determine[s] the disputed question; and (3) resolve[s] an important issue completely separate from the merits of the action.” In re World Trade Ctr. Disaster Site Litig., 521 F.3d at 179 (internal quotation marks and citation omitted). The order at issue here is not such an order because both the dismissal of the Town’s cross-claims and the imposition of sanctions against the Town’s lawyer can be reviewed on appeal from a final judgment in this action. See Giraldo v. Bldg. Serv. 32B-J Pension Fund, 502 F.3d 200, 203 (2d Cir.2007). Among the issues raised by appellants is a challenge to the imposition of sanctions in this case. While we have no jurisdiction to consider the matter, we note that the record does not reflect a basis for the imposition of sanctions. The District Court might wish to clarify the grounds for its decision in the course of further proceedings in this action. For the forgoing reasons, we lack jurisdiction over this appeal, and it is therefore DISMISSED. The mandate shall issue forthwith.

PER CURIAM. Appellant Kevin Jones filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). The district court granted Jones a two level reduction and imposed a 120 month within the Guidelines sentence. Jones appeals the court’s refusal to grant more than a two-level reduction in the offense level. We affirm. I. Background In 1998 Kevin Jones plead guilty by agreement to an amended information charging him with possession with intent to distribute cocaine base, commonly known as “crack cocaine,” and using or carrying a firearm in connection with a drug trafficking crime. In 1999 the district court, applying the mandatory sentencing guidelines in effect prior to United States v. Booker sentenced Jones to 162 months for distribution of crack cocaine to be served consecutively with a 60 month sentence for carrying a handgun in conjunction with a drug offense. The 162 month sentence was the maximum under the guideline range of 130 to 162 months resulting from an offense level of 27 and a criminal history category VI. On November 1, 2007, Amendment 706 to the Sentencing Guidelines went into effect lowering sentencing ranges for crack cocaine offenses by two offense levels. Amendment 713 subsequently made this change retroactive. On June 24, 2008, Jones filed a motion under 18 U.S.C. § 3582(c)(2) seeking to reduce his sentence on the distribution charge based on the retroactive Guideline Amendment. The district court held a hearing on August 11, 2008, determined Jones was entitled to a sentence adjustment, and reduced his sentence on the distribution charge to 120 months, a sentence in the middle of his newly adjusted guideline range of 110 to 137 months. Jones appeals. II. Discussion We review de novo a district court’s legal conclusions about the scope of its authority under 18 U.S.C. § 3582(c)(2). United States v. Lewis, 557 F.3d 601, 613 (8th Cir.2009). We review for abuse of discretion a district court’s decision to reduce a sentence under 18 U.S.C. § 3582(c)(2). United States v. Wyatt, 115 F.3d 606, 609 (8th Cir.1997). Section 3582(c)(2) provides that “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o), ... the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The applicable policy statement here is provided by section 1B1.10 of the Sentencing Guidelines, which states that proceedings under § 3582(c)(2) are not full resentencings and that a district court may not reduce a sentence to a term less than the minimum amended guideline range. U.S. Sentencing Guidelines Manual § lB1.10(b)(2)(A) (2007). Jones argues that the district court improperly limited his sentence reduction to a two-level reduction in the offense level. He argues that the district court erred in not recognizing that Booker applies to re-sentencings under § 3582(c)(2), erred in treating the amended guideline range as the default range, and abused its discre tion in not finding that the amended guideline range was still greater than necessary to serve the sentencing goals of § 3553(a). All of his arguments turn on whether Booker applies to his resentencing or not. We recently held in United States v. Starks that Booker does not apply to re-sentencings under § 3582(c). 551 F.3d 839, 840 (8th Cir.2009). In Starks we observed that “sentence reductions based on retroactive guideline amendments” are sentence modification proceedings governed by § 3582(c), and that in enacting § 3582(c) Congress limited the authority of a district court to modify a sentence. Id. at 841-42. We further noted that this limitation does not raise the constitutional concerns at issue in Booker, and that Booker did not invalidate § 3582(c). Id. We concluded that a district court may not reduce a sentence below the amended guideline range, and that it was not error for a district court “to refuse to consider a further reduction based on § 3553(a) or to hold an evidentiary hearing for that purpose.” Id. at 843; accord United States v. Dunphy, 551 F.3d 247 (4th Cir.2009); United States v. Rhodes, 549 F.3d 833 (10th Cir.2008); but see United States v. Hicks, 472 F.3d 1167 (9th Cir.2007). Consistent with Starks, we hold that the district court did not err in limiting Jones’ sentence reduction to a two-level reduction in the offense level. We affirm. . The Honorable Laurie Smith Camp, United States District Judge for the District of Nebraska. . The Honorable William G. Cambridge, United States District Judge for the District of Nebraska. This case was assigned to Judge Smith Camp on May 16, 2006 following Judge Cambridge’s retirement. . 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). . Jones did not seek to reduce his sentence on the firearms charge, and that aspect of his sentence is not at issue in this appeal.

ORDER Joseph Freije appeals a Tax Court decision upholding a lien arising from a deficiency assessment for the 1999 tax year. We affirm the judgment. This is the second time Freije has gone to the Tax Court to thwart collection of unpaid income tax for 1999, and a summary of the previous litigation is necessary to understand this case. The first action, Freije v. Commissioner, 125 T.C. 14 (2005) (Freije I), arose when the Internal Revenue Service notified Freije in November 2004 that it planned to levy on his property to satisfy tax liabilities purportedly due for 1997, 1998, and 1999. During that three-year period, Freije had made a number of payments to the IRS without designating their purpose, including a payment by check in 1998 for $1776 that the IRS mistakenly processed as $11,776. Id. at 16-18. The IRS credited that amount against the outstanding liability for the 1997 tax year and refunded the “overpayment” of $5513 to Freije. Id. at 17. Eventually the IRS noticed its $10,000 error, reversed it, and began crediting payments received from Freije in 1999 to his reinstated liability for 1997. Id. at 17-18. The IRS also recalculated Freije’s taxable income for 1999, mostly because of disallowed miscellaneous deductions, and assessed additional tax without issuing a statutory notice of deficiency. Id. at 18-19. The Tax Court concluded in Freije I that the IRS had not been authorized to use Freije’s payments in 1999 to recover its erroneous refund, and thus the amounts received that year should have been posted to his accounts for tax years 1998 and 1999. 125 T.C. at 30-31. The court explained that the IRS cannot use the process for collecting unpaid tax to recoup an erroneous refund, and instead must use the specific statutory process, see I.R.C. § 7405, for recovering a mistaken refund. Freije I, 125 T.C. at 31. That meant that the proposed levy could not proceed for 1997, nor could it proceed for 1998 and 1999 because Freije’s accounts for those years had not been properly credited with the payments he made in 1999. See Freije I, 125 T.C. at 31. Moreover, the court continued, the proposed levy could not be sustained as to 1999 because the IRS had disallowed deductions shown on the return and assessed additional tax without a notice of deficiency. Id. at 35. The Tax Court remanded the matter to the Office of Appeals for reconsideration of the proposed levy for 1998 and 1999, id. at 37, and in early 2006 issued a final judgment decreeing that the IRS could “not proceed with collection with respect to petitioner’s taxable years 1997, 1998, and 1999, as set forth in the Notice of Determination Concerning Collection Action(s) Under Section 6320 and/or 6330, dated November 26, 2001, upon which thi? case is based.” Freije v. Comm’r, No. 932-02L (T.C. Feb. 22, 2006). Meanwhile, after Freije had commenced that action in the Tax Court in January 2002, the IRS again refigured his 1999 tax liability, this time disallowing Schedule C business expenses that were not at issue in the ongoing litigation. The IRS now concluded that Freije owed $27,457 in unpaid tax for that year and, unlike before, issued the required notice of deficiency in March 2002. Freije did not challenge the notice of deficiency, and in February 2003 the IRS assessed the amount stated in the notice. In 2007 the IRS set out to collect that assessment by filing a notice of tax lien in Johnson County, Indiana, where Freije lives. Freije requested a Collection Due Process hearing before an Appeals Officer to challenge the lien, arguing that the decision in Freije I prevented the IRS from collecting any deficiency for 1999. The Appeals Officer disagreed, explaining that Freije I prevented the IRS from proceeding with the levy it proposed in November 2001 but did not prevent collection based on the new assessment. Freije renewed his argument in the Tax Court, which upheld the decision of the Appeals Officer. On appeal to this court, Freije makes no discernable argument that the Tax Court committed error in upholding the lien. Instead of contesting the propriety of the proposed collection, Freije protests that the government has engaged in fraud and threatened violence while pursuing a protracted vendetta against him and his family. He also asserts that the IRS owes him a refund for 1999. We review the Tax Court’s decision “in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury.” I.R.C. § 7482(a)(1); Square D Co. & Subsidiaries v. Comm’r, 438 F.3d 739, 743 (7th Cir.2006). That is, we review legal questions de novo and factual determinations for clear error. Kikalos v. Comm’r, 434 F.3d 977, 981 (7th Cir.2006). Where the underlying tax liability is not properly at issue, we review the Appeals Officer’s determination for abuse of discretion. Kindred v. Comm’r, 454 F.3d 688, 694 (7th Cir.2006). This case does not concern the existence or amount of the 1999 tax liability. The Internal Revenue Code allows taxpayers to challenge an underlying liability in a Collection Due Process hearing only “if the person did not receive any statutory notice of deficiency for such tax liability or did not otherwise have an opportunity to dispute such tax liability.” I.R.C. § 6330(c)(2)(B); see United States v. Patridge, 507 F.3d 1092, 1095 (7th Cir.2007), cert. denied, — U.S. -, 128 S.Ct. 1721, 170 L.Ed.2d 514 (2008). Freije received a notice of deficiency and could have contested the proposed assessment but did not. Accordingly, the only relevant question during the Collection Due Process hearing was the propriety of the tax lien. The IRS had to satisfy the Appeals Officer that it followed the statutory and administrative procedures, and that it gave appropriate weight to Freije’s legitimate concern that the collection effort not be unnecessarily intrusive. See I.R.C. §§ 6320(c), 6330(c). Freije could have made an offer-in-eompromise or proposed collection alternatives, including posting a bond, substituting other assets, or paying in installments. Id. § 6320(c). He did none of those things. The Tax Court thus concluded that the Appeals Officer had properly exercised his discretion in sustaining the notice of tax lien, and Freije suggests no basis for overturning that decision. See Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir.2001). AFFIRMED.

PER CURIAM: Jorge Mauriccio Vasquez appeals the district court’s order denying his motion to impose a new sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See United States v. Vasquez, No. 3:06-cr-00147-RJC-DCK-2 (W.D.N.C. Oct. 24, 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.

DUHÉ, Circuit Judge: A jury convicted Carmen Ramirez (“Ramirez”) of one count of conspiracy to distribute heroin in violation of 21 U.S.C.A. § 846 (West 1999). Ramirez raises two issues on appeal. First, Ramirez argues the district court erred in denying her motion for a mistrial or alternatively to strike the government’s two main witness’ testimony on the grounds that the government’s failure to produce tapes of conversation between the two witnesses violated 18 U.S.C.A. § 3500 (“Jencks Act”). Second, Ramirez argues the district court erroneously excluded the sworn affidavit of FBI special agent James Kendall when Ramirez sought to introduce it as an admission of a party-opponent. For the following reasons, we vacate and remand in part for a hearing concerning the government’s culpability regarding the tapes and affirm the district court’s evidentiary ruling. I. BACKGROUND The government alleged that Ramirez conspired to smuggle heroin into the federal prison in Seagoville, Texas in which her husband was incarcerated. The government based its case primarily on the testimony of two witnesses: (1) Ronald Secrease (“Secrease”), a special investigations supervisor at the prison; and (2) Wendell Blount (“Blount”), a Seagoville inmate serving time for a white-collar tax offense. Blount acted as a government informer throughout the transaction constantly updating Secrease about the details of the impending transaction through written notes and telephone calls. The prison tapes outgoing phone calls from the prisoners on large reels. When Ramirez discovered through cross-examination of Blount at trial that telephone updates from Blount to Secrease were routinely taped, she moved the court to order the government’s disclosure of the tapes. The next day the government produced recordings of two conversations between Blount and Secrease but reported that the Bureau of Prisons destroyed the tapes containing the remaining conversations through its routine procedures. The calls the govern ment produced were available only through coincidence; because they were on the same tapes the U.S. Attorney subpoenaed from the Bureau of Prisons containing phone calls from Mr. Ramirez inside the prison to Mrs. Ramirez. Ramirez moved for a mistrial and alternatively to strike Blount and Secrease’s testimony under the Jencks Act due to the unavailability of the tapes for cross-examination. The court denied Ramirez’s motion. Ramirez also sought to introduce the sworn affidavit of FBI Special Agent James Kendall as the admission of a party-opponent under Fed.R.Evid. 801(d)(2)(B). In his affidavit, Kendall affirmed that Blount said Mrs. Ramirez had the heroin at her home. The district court prevented Kendall from testifying as a defense witness earlier in the trial because the defense failed to properly subpoena him as a government agent. The district court excluded Kendall’s affidavit because it felt Ramirez was attempting to introduce evidence that was previously properly excluded. Ramirez appeals. II. DISCUSSION A. Jencks Act Ramirez argues the district court erred in not declaring a mistrial or striking the testimony of Secrease and Blount as a sanction for the government’s non-disclosure under the Jencks Act. The government argues it was not required to disclose the material under the Jencks Act because it did not know of the existence of the taped conversations until after they were erased. We review a district court’s decision concerning the Jencks Act for clear error. See United States v. Martinez, 87 F.3d 731, 734 (5th Cir.1996). “The trial court’s finding will constitute clear error where such finding either rests upon an incorrect rule of law or is inconsistent with the facts upon which it purports to rests.” Id. Even when a violation is found, the failure to produce prior statements is subject to a harmless error analysis. See United States v. Martinez, 151 F.3d 384, 391 (5th Cir.1998). In the context of the Jencks Act, we must strictly apply the harmless error analysis review and determine whether the error itself had a substantial influence on the judgment in addition to determining whether there was sufficient evidence to support the conviction. See United States v. Keller, 14 F.3d 1051, 1054-55 (5th Cir.1994). The Jencks Act requires the United States to disclose a prior statement of a witness in its possession relating to the subject matter of that witness’ testimony. See 18 U.S.C.A. § 3500 (West 1985). The definition of “statement” includes “a ... recording ... which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement.” Id. The United States must disclose the information after the witness’ direct examination testimony. Id. If the United States fails to disclose, the court must either strike the testimony of the witness or declare a mistrial. Id. The district court denied a mistrial and refused to strike Blount and Secrease’s testimony on two grounds. First, the district court found that the tapes were not in the “possession of the United States”, as defined in the Jencks Act, relying on United States v. Trevino, 556 F.2d 1265 (5th Cir.1977). Second, the district court held it may “apply such remedy as justice requires” because the government’s failure to produce the tapes was through its negligence or good faith oversight relying on United States v. Taylor, 13 F.3d 986, 990 (6th Cir.1994), United States v. Pope, 574 F.2d 320, 325-26 (2nd Circuit 1978), and United States v. Polizzi, 500 F.2d 856 (9th Cir.1974). The district court also relied on United States v. Beasley, 576 F.2d 626 (5th Cir.1978) and United States v. Miranda, 526 F.2d 1319, 1328 (2nd Cir.1975) holding that where the prosecution acted in good faith the court may determine the appropriate sanctions by weighing the government’s culpability against the amount of prejudice resulting to the defendant. The district court found no culpability on the government’s part and no prejudice to Ramirez as a result of the destruction of the tapes. 1. “Possession of the United States” In Trevino, the court held that a presentence report was not “in the possession of the United States” for Jencks Act purposes when it is in the possession of a probation officer. See id. at 1271. However, the court also stated that [o]ur decision denying discovery of the presentence report of a government witness under Brady, the Jencks Act, and Rule 16 is not to be read as a comprehensive survey of the boundaries of required disclosure under those provisions ... Were we considering some type of report held by an arm of the government other than the probation officer, an investigative agency, for example different questions would be presented, those concerning the prosecutor’s duty to disclose material not technically within his possession but to which he has ready access. Id. at 1272. The Jencks Act is not restricted to statements “in the hands of, or known to, the particular prosecuting attorney assigned to the case, the U.S. Attorney’s office, the Criminal Section of the Justice Department, or even the entire Justice Department. Its order is unqualified.” United States v. Beasley, 576 F.2d 626, 631 (5th Cir.1978); see United States v. Bryant, 439 F.2d 642, 650 (D.C.Cir.1971) (holding the duty of disclosure under the Jencks Act “affects not only the prosecutor, but the Government as a whole, including its investigative agencies.”) Secrease, an employee of the Bureau of Prisons, initiated and was constantly involved in investigating the smuggling of drugs into the Seagoville institution. There is no doubt that the Bureau of Prisons was part of the investigative team regarding this transaction. The tapes were in the possession of the Bureau of Prisons until they were taped over, and therefore they were in the “possession of the United States” as defined by the Jencks Act. The district court erred in finding otherwise. 2. Good Faith Exception The district court also erred in excusing the government’s failure to produce the tapes due to its good faith oversight or negligence. While other circuits have fashioned such an exception, see Taylor, 13 F.3d at 990; Pope, 574 F.2d at 325, we have declined to follow this route. “[U]nder the Jencks Act, we consider results, not motive.” Beasley, 576 F.2d at 627. “Unless a nondisclosure was harmless error, reversal is required even where the prosecution has acted in good faith.” United States v. McKenzie, 768 F.2d 602, 609 (5th Cir.1985). However, in the case of lost or destroyed evidence, we apply a separate analysis. In United States v. Bryant, 439 F.2d 642 (D.C.Cir.1971) the court formulated a new approach for lost or destroyed evidence cases under the Jeneks Act, Brady and Rule 16 because of the unique circumstances facing a court in that situation. “[I]n these cases we are entirely in the dark.” Id. at 648. Because the evidence is no longer available we have no idea whether it would have been favorable to the Defendant. As in this case, the government’s case in Bryant also essentially relied on the testimony of one witness. A government agent recorded the conversations of the witness and then “misplaced” the tape because he deemed it unimportant to the case. The court held that Jeneks Act sanctions should be imposed in cases of bad faith and negligent suppression of evidence but not in the case of good faith loss by the government. Id. at 651. Because the court found the record on appeal inadequate, it remanded to the trial court to “weigh the degree of negligence or bad faith involved, the importance of the evidence lost, and the evidence of guilt adduced at trial in order to come to a determination that will serve the ends of justice.” Id. at 653. We have adopted this approach when deciding lost and destroyed evidence cases. See Johnston v. Pittman, 731 F.2d 1231, 1234 (5th Cir.1984); Armstrong v. Collier, 536 F.2d 72, 78 (5th Cir.1976); United States v. Rojas, 502 F.2d 1042, 1044 (5th Cir.1974). There is little evidence in the record concerning the degree of the government’s culpability in failing to disclose the tapes. However, the government’s claim that it had no knowledge of the recordings of conversations between Blount and Sec-rease until it was exposed on cross-examination seems highly implausible. The U.S. Attorney’s knowledge that all inmate calls from the Seagoville institution were taped is evident from her subpoena of phone calls from Mr. Ramirez to Mrs. Ramirez during the same time period. Additionally, both Secrease and Blount were aware that their conversations were being taped while they were speaking. These two witnesses’ testimony almost exclusively supported the government’s case at trial. On direct examination of Secrease and Blount, the government specifically asked the witnesses how they communicated, and both replied by written note and telephone. Even more telling, Blount testified that while there was no mention of Mrs. Ramirez in any of the written notes, he discussed her involvement frequently with Secrease over the phone. For these reasons, we find it unlikely that the government did not know of the multiple recordings of its star witnesses concerning the subject on which they testified at trial. We also find unpersuasive the government’s arguments that it is excused because the tapes containing the lost calls were destroyed before Mrs. Ramirez’s indictment. Even so, the tapes were certainly available during the investigation of Ramirez therefore allowing the government to preserve only the conversations it believed were favorable to the prosecution. Additionally, unlike the district court, we believe there is a high likelihood of prejudice to Ramirez because had the government produced the tapes, Ramirez could have used the evidence to impeach the government’s most important witnesses. The district court should explore these issues with the U.S. Attorneys on remand in making a meaningful determination of their culpability regarding the lost recordings. If the district court determines that the government intentionally or negligently lost the tapes containing the conversations, it must dismiss Ramirez’s indictment, because a new trial cannot remedy the government’s nondisclosure. B. Kendall Affidavit Ramirez argues the district court erred in excluding special agent Ken dall’s search warrant affidavit. Ramirez asserts the affidavit is admissible as the admission of a party-opponent under Fed. R.Evid. 801(d)(2)(B). The government contends that evqn if the district court abused its discretion in excluding the affidavit, it was harmless error. We review a district court’s ruling regarding the admissibility of evidence for abuse of discretion and will reverse a district court’s ruling only if it affects a substantial right of a party. See First Nat’l Bank of Louisville v. Lustig, 96 F.3d 1554, 1574 (5th Cir.1996); United States v. Pace, 10 F.3d 1106, 1115 (5th Cir.1993); United States v. Coleman, 997 F.2d 1101, 1104 (5th Cir.1993). Ramirez attempted to introduce Kendall’s affidavit to refute the government’s theory explaining the absence of drugs recovered from the transaction. At trial, the government explained it did not recover drugs from this transaction because it moved too soon. The government contended that Mrs. Ramirez had not yet brought the drugs because she had not yet received the money order from Blount. Blount testified that Mrs. Ramirez did not bring drugs to the prison because she could not purchase them until she received the money order from Blount. In his affidavit, Kendall affirmed that Blount said the heroin was waiting at Mrs. Ramirez’s home. Ramirez argues this evidence would have rebutted the government’s theory concerning the absence of drugs recovered from this transaction. Assuming the district court did err in excluding the affidavit,, we hold the error was harmless because the defense elicited the same information from Blount on cross-examination. Blount testified that he may have said the drugs were at Ramirez’s home, 'and the defense cross-examined him concerning the inconsistency of his testimony with his statement to Kendall. Secrease also testified that Blount said the drugs were waiting at Ramirez’s house. As a result, we find the affidavit would have been cumulative, and its exclusion was merely harmless error. CONCLUSION For the above reasons, we vacate and remand in part for a hearing concerning the culpability of the government regarding the tapes and affirm the district court’s evidentiary ruling. REVERSED AND REMANDED IN PART, and AF- . FIRMED IN PART. . The government does not contend that the recordings were not "statements” as defined in the Jencks Act. Ramirez concedes the tapes were destroyed before she was indicted and that the government did not intentionally destroy the tapes. . The text of the Jencks Act provides: (b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. (d) If the United States elects not to comply with an order of the court under subsection (b) or (c) hereof to deliver to the defendant any such statement ... the court shall strike from the record the testimony of the witness, and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared. 18 U.S.C.A. § 3500 (West 1985) . The court in Bryant was faced with the same situation as are we in choosing between affirming the conviction or dismissing the indictment. "A new trial would be simply a repetition of the first trial, similarly infected by non-disclosure” of Jeneks material, and a new trial without Blount's and Secrease’s testimony would be pointless, since without their testimony there would be no case. Id. at 653. . Ramirez requested that the district court issue a subpoena for Kendall as a witness for trial, but the district court denied the request because she did not follow the correct procedures for the subpoena of a government agent.

PER CURIAM: Dionne R. Jones appeals the district court’s order granting summary judgment for the Defendant and the order granting in part and denying in part her motion to reconsider that order. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s order granting summary judgment for the Defendant and the order granting in part and denying in part reconsideration for the reasons stated by the district court. See Jones v. Va. Dep’t of Soc. Servs., No. 1:08—cv-00166-TSE-TRJ, 2008 WL 4223615 (E.D. Va. filed Sept. 10, 2008 & entered Sept. 11, 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.

PER CURIAM: Kenrick G. Eastmond petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his writ of coram nobis and 28 U.S.C.A. § 2255 (West Supp.2008) motion to vacate. He seeks an order from this court directing the district court to act. Our review of the record reveals that the district court entered final judgment dismissing East-mond’s writ and motion on December 12, 2008. Accordingly, because the district court has decided Eastmond’s case, we deny the mandamus petition as moot. We grant leave to proceed in forma pauperis. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. PETITION DENIED.

MEMORANDUM RLI Insurance Company’s (“RLI”) commercial umbrella policy includes a following form endorsement entitled “AUTOMOBILE LIABILITY FOLLOWING FORM.” This endorsement covers “liability for bodily injury or property damage [that] is covered by valid and collectible underlying insurance as described in the schedule of underlying insurance ... for such hazards for which coverage is afforded under said underlying insurance.” We agree with the district court that in this case RLI’s umbrella policy was limited to the liability of the insured and the following form endorsement did not incorporate the underinsured motorist (“UIM”) coverage from the Coregis policy. Contrary to Neffs argument, the following form here serves only to ensure that RLI would be the excess insurer for the liability of the insured. Additionally, the Arizona statutes treat umbrella policies differently from underlying insurance policies. Arizona Statute 20-259.01(L) expressly excepts umbrella policies from the requirement that the insurer make UIM available to the insured. This action by the Arizona legislature suggests that an umbrella policy should not be presumed to include UIM coverage. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. . Although the district court vacated judgment in favor of RLI with respect to the issue of coverage and did not reenter judgment on that issue, the court and the parties treated that judgment as dispositive of the coverage issue. We treat the initial judgment in favor of RLI on coverage as being merged into the final judgment for purposes of a final appeal-able order.

Affirmed by published opinion. Judge MURNAGHAN wrote the opinion, in which Judge WIDENER and Judge HAMILTON joined. OPINION MURNAGHAN, Circuit Judge: Before us is a criminal appeal from two defendants, Akin Akinkoye and Nouyiba-tou Afolabi, who were convicted of credit card fraud. They raise a number of challenges to the conviction, including claims that the district court erred in denying their motion to sever, failing to hold a Franks hearing to determine whether probable cause existed, failing to grant their motions for a judgment of acquittal, and in departing upward from the sentencing guidelines. Individually, defendant Afolabi also alleges that she did not meet the $1,000 threshold for one of the crimes charged, and that the district judge should have departed downward in her case because she only played a minimal role in the criminal endeavor. Defendant Akinkoye claims that the upward departure for abuse of trust was not warranted because he was not in a position of trust, and that a two level increase for obstruction of justice is not warranted because the statements he made had no effect on the prosecution of his case. All in all, the district court’s decisions are in order and we therefore affirm. I. Akinkoye was a real estate agent employed by Re/Max real estate agency and worked in its Burtonsville, Maryland office. Having determined that he needed money to invest in certain legitimate business opportunities, he planned an elaborate scheme to defraud clients of Re/Max and various financial institutions by using the clients’ financial and credit information to obtain credit cards from the financial institutions (“credit card companies”). On or about May 12, 1995, Akinkoye put his plan into effect. He effected the scheme by reviewing the files of clients of Re/Max, submitting credit card applications to the credit card companies and obtaining from them genuine credit cards issued in the names of the clients. He used the addresses of the properties owned by the clients to receive the credit cards. To the extent that the clients’ mail was delivered into secured places — such as inside the home or in a locked mailbox— Akinkoye would access the mail by using the keys to the home provided by the clients. Through that process, Akinkoye managed to obtain numerous credit cards over a nineteen-month span and incurred losses of more than $200,000. None of the clients was aware that their names, information and property were being used fraudulently. Akinkoye did not work alone. Because some of the clients were women, he enlisted Afolabi’s assistance in carrying out the scheme. She admitted that she gave Akin-koye pictures of herself that were ultimately used to provide photo identification for the cards. In addition, she signed the back of some of the cards that were used to obtain goods and services. She also personally used at least one of the cards in Nordstrom’s. . Postal Inspectors became suspicious in December 1996 when they were contacted by credit card companies whose investigators believed that fraud was afoot. Conversations with the companies led Postal Inspector Patrick Bernardo to contact victims of the scheme. After compiling handwriting samples and descriptions resembling Akinkoye, inspectors obtained a warrant and searched Akinkoye’s home. Inspectors found numerous credit cards, credit card applications, pictures of Afola-bi, and other inculpating evidence. The government charged Akinkoye and Afolabi with conspiracy to violate and violations of 18 U.S.C. § 1029(a)(2), which criminalizes the unauthorized use of access devices. Afolabi was also charged with aiding and abetting violations of that statute. Both defendants made statements to police regarding their respective roles in the offenses. The two defendants were tried by jury, convicted and sentenced. The instant appeal ensued. II. The defendants first argue that the district court erred in denying their motion for severance. They argue that because each defendant’s confession implicated the other, their trials should have been held separately. The failure to do so, they argue, was highly prejudicial. We review decisions to deny motions to sever for abuse of discretion. See United States v. Brooks, 957 F.2d 1188, 1145 (4th Cir.1992). Generally, we adhere to the rule that defendants charged with participation in the same conspiracy are to be tried jointly. See United States v. Roberts, 881 F.2d 95, 102 (4th Cir.1989). A defendant is not entitled to severance merely because separate trials would more likely result in acquittal, see id. at 1145, or because the evidence against one defendant is not as strong as that against the other. See id. Rather, the defendant must show prejudice. See FED. R. CRIM. P. 14. In the instant case, the defendants base their assignment of error on the admission of their respective redacted confessions, which they argue implicate the other party. Where the unredacted out-of-court confession of a non-testifying co-defendant clearly implicates a defendant, severance is required to preserve that defendant’s Sixth Amendment right to confront his accusers. See Bruton v. United States, 391 U.S. 123, 135-36, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Moreover, if a redacted confession of a non-testifying co-defendant given to the jury (by testimony or in writing) shows signs of alteration such that it is clear that a particular defendant is implicated, the Sixth Amendment has been violated. See Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 1157, 140 L.Ed.2d 294 (1998). In Gray, the non-testifying codefend-ant’s statement was redacted by the government and read into evidence. See id. at 1153. The statement was redacted by simply replacing the defendant’s name with blank spaces or the word “deleted.” Id. The officer who read the statement into evidence indicated where the blanks and deletions were in the statement. For example, one exchange proceeded as follows: Q: Who was in the group that beat [the victim]? A: Me, [an empty space v?as left here],[another empty space] and a few other guys. Id. at 1158. When that passage was read to the jury, the officer reading it said “deleted” where the blank spaces appeared. See id. at 1153. The Supreme Court concluded that the statements obviously referred to the existence of the defendant and implicated him, in light of the follow-up questions asked by the prosecutor. Id. at 1157. By contrast, statements that, when redacted, do not even refer to the existence of the defendant are admissible and do not require severance. See Richardson v. Marsh, 481 U.S. 200, 208, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). But, Richardson expressly left open the question before us here—namely, whether redacted statements that refer to the existence of another party who may be the defendant through symbols or neutral pronouns are admissible. See id. at 211, n. 5, 107 S.Ct. 1702. The Supreme Court has strongly implied that such statements do not offend the Sixth Amendment. In Gmy, the court used as an example the exchange quoted above and expressly wondered “[w]hy could the witness not, instead, have said: ‘Question: Who was in the group that beat [the victim]? Answer: Me and a few other guys.’ ” Id. at 1157. It is that type of neutral phrase that the prosecutor used in the instant case. The prosecutor had the confessions retyped, and replaced the defendants’ respective names with the phrase “another person” or “another individual.” Because the retyped versions of the confessions were read to the jury, the jury neither saw nor heard anything in the confessions that directly pointed to the other defendant. Given the neutral phrases used in the statements the defendants were not prejudiced in any way. For example, Akin-koye’s statement at one point refers to “a guy in New York.” Since that reference could not possibly refer to Afolabi (who is a woman) the one gender neutral reference to “another person” appearing in Akin-koye’s confession does not facially implicate her. Likewise, in an argument below, Akinkoye himself argued that Afolabi’s confession did not implicate him because she lived with a number of males and she could have been referring to one of them. Using his own logic then, a reference to “another person” in Afolabi’s confession does not facially implicate him. Furthermore, as discussed below, there was sufficient evidence to convict both defendants without the confessions, particularly Akinkoye. Therefore, the motion to sever was properly denied. III. Akinkoye next argues that the district court erred in failing to hold a Franks hearing to determine whether errors in the warrant were made intentionally to mislead the magistrate into concluding that probable cause existed to search Akin-koye’s home. Under the rule the Supreme Court enunciated in Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), where a defendant can show that the officers made misstatements of fact upon which the magistrate relied in issuing a warrant, the court will hold a hearing to determine whether the misstatements were intentional. See id. A court will hold a Franks hearing after the defendant makes a “substantial preliminary showing” that the police misstated the facts upon which the warrant was based. See Franks, 438 U.S. at 155, 98 S.Ct. 2674. Mere conclusory statements are insufficient, as is a request for a hearing simply to have more cross-examination. See id. at 171, 98 S.Ct. 2674. The district court correctly determined that a hearing was unnecessary. The warrant was issued based on facts provided by Inspector Bernardo. The inspector’s affidavit averred several things, including that: credit card companies had complained of fraudulent activity, handwriting samples showed that Akinkoye’s handwriting was very similar to the perpetrator’s, there were photo identifications of Akin-koye as the perpetrator, and Thomas Kuli-na, a victim, stated that he had been defrauded. Akinkoye argues that there were two major misstatements in the affidavit submitted in support of the warrant application. First, he points out that the name on the credit card used at a gas station (whose attendant identified Akinkoye) was not Thomas Kulina, but was LeeAnn Kuli-na, his wife. Second, he asserts that the employees of an auto dealership who made photographic identifications of him only told Bernardo that Akinkoye was in their store and that they did not see him actually using the credit card. He states that Bernardo’s assertion that the employees identified Akinkoye as the person who used the Kulina card is therefore false. However, neither of the inconsistencies warrants a Franks hearing. The purpose of Franks hearings is to determine whether the probable cause determination was based on intentionally incorrect information. Here, the record indicates that no intentionally incorrect information was given. The gas station attendant specifically identified Akinkoye as the person who used a Kulina card and identified himself as Thomas Kulina. Akinkoye does not challenge the attendant’s account, only that the card used was issued to LeeAnn Kulina. Therefore, even if Bernardo used the husband’s name where he should have used the wife’s, the attendant’s identification of Akinkoye still links Akinkoye to criminal activity prohibited by 18 U.S.C. § 1029. Moreover, Bernardo relied on the attendant’s statements. Thus, even if the attendant lied to Bernardo, Bernardo’s statements would not be intentionally or recklessly misleading unless he had strong reason to believe that the attendant was lying. Akinkoye has not shown that. The inconsistencies with respect to the employees of the automobile dealer do not create a need for a Franks hearing, either. The two employees identified Akinkoye through a photo spread as the person who used Kulina’s credit card when paying for automobile parts. Akinkoye points out that the two employees never actually saw him sign the receipt or tender the card to the cashier for payment. However, the employees did state that they saw him with a credit card in his hand, and the record shows that the credit card used at the gas station was used at the automobile dealership on the same day. Moreover, we must again bear in mind that Bernardo relied on them statements to him. Those facts were sufficient to give Bernardo probable cause to conduct his search. In any event, probable cause existed even without those identifications. Bernardo averred that he was contacted by a bank and a- victim and was told that fraud was afoot. A comparison of the fraudulent receipts he received from the bank with samples of Akinkoye’s handwriting he obtained pursuant to another tip he received revealed striking similarities. Based on the handwriting analysis, Bernardo would have had probable cause to conduct a search even without the other evidence. Therefore, the district court’s determination that a Franks hearing was unnecessary will not be disturbed. IV. The defendants next claim that their convictions under 18 U.S.C. § 1029(a)(3) should be reversed because that statute did not contemplate the use of legitimate credit cards fraudulently obtained from the credit card company itself—ie., cards for which the person named never actually applied. The defendants were convicted of conspiracy to violate, and violating 18 U.S.C. § 1029(a)(2), which proscribes an individual from “knowdngly and with intent to defraud traf-ficfking] in or usfing] one or more unauthorized access devices during any one-year period, and by such conduct obtaining] anything of value aggregating $1,000 or more during that period.” Id. The statute defines “unauthorized access devices” as “any access device that is lost, stolen, expired, revoked, canceled, or obtained with intent to defraud.” 18 U.S.C.A. § 1029(e)(3) (West Supp.1998). The defendants contend that the legislative history of the statute suggests that Congress intended the statute to apply only to credit cards that are “genuine, but being misused.” See H.R. REP. NO. 98-894, 98th CONG., 2d SESS. 14 (1984). They argue that the credit cards were not “genuine” because they were never legitimately obtained by the victims, but were obtained by Akinkoye “by false applications.” See Appellants’ Br. at 19. We disagree. First, Appellants ignore a well-established canon of statutory construction: if the statute is unambiguous on its face, the court will not look to the legislative history. See Ex Parte Collett, 337 U.S. 55, 61, 69 S.Ct. 944, 93 L.Ed. 1207 (1949); First United Methodist Church v. United States Gypsum Co., 882 F.2d 862, 865 (4th Cir.1989). The statute unambiguously criminalizes the obtaining of an access device with the intent to de fraud, since that conduct is specifically included in the definition of “unauthorized use.” See 18 U.S.C.A. § 1029(e)(3). None of the statutory language suggests that the cards must have been originally obtained by the rightful cardholder. In fact, the phrase “obtain with intent to defraud” is not modified in any way at all. Id. The Appellants concede that Akinkoye “obtained [the credit cards] by false applications,” and that he and Afolabi signed and used some of them. There is no dispute that credit cards are “access devices” within the meaning of 18 U.S.C. § 1029(e)(1), or that Akinkoye acted intentionally or knowingly in originally obtaining them or that Afolabi acted intentionally or knowingly in obtaining the cards from Akinkoye and using them. Since they intended to defraud the person whose credit was relied upon and the companies issuing the cards, there is no doubt that the defendants’ conduct fits squarely within the language of the statute. There is no need to look any further than the statute’s plain wording. Even if we were required to review the language the Appellants quoted, their convictions would stand. Akinkoye did not create or manufacture the cards. Rather, the credit card companies issued actual credit cards to him. As Akinkoye proved, the cards could be—and were—used in commerce just like all of the other credit cards the companies regularly issue. Therefore, they are “genuine” cards. Moreover, the cards certainly were “misused.” Akinkoye and Afolabi confessed to using the cards to obtain goods and services. They had no permission to avail themselves of the lines of credit the credit card companies intended to extend to the victims. In fact, the victims did not know that the lines of credit had been extended to them. Therefore, the cards were “misused.” In short, the Appellants’ convictions should stand. V. Afolabi claims that there was insufficient evidence to convict her of violating § 1029(a)(2) because she only defrauded one person, one time, for an aggregate cost of $647. The statute requires the defendant to “traffie[ ] in or use[ ] one or more unauthorized access devices during any one-year period, and by such conduct obtain[ ] anything of value aggregating $1,000 or more during that period.” Id. Challenges to the sufficiency of the evidence require that the reviewing court view the evidence in the light most favorable to the government to determine whether a reasonable fact finder could rationally find the defendant guilty beyond a reasonable doubt. See United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir.1982). Viewed in the light most favorable to the government, there is sufficient evidence to convict Afolabi. Under § 1029(a)(2), the use of the unauthorized access device is made criminal. As stated above, the phrase “obtain with intent to defraud” is not modified. Nowhere in its plain language or its legislative history does that section require that the unauthorized user obtain the credit card directly from the victim. Nor does the definition of “unauthorized access device,” from which the “obtain with the intent to defraud” language is taken, require that the defendant acquire the card directly from the victim. All the statute requires is that the defendant obtain the credit card with the intent to defraud. Since Afolabi obtained the cards with the intent to defraud the persons whose names appear on the cards and the issuers of the cards, she is an “unauthorized” user of the cards. Afolabi also meets the threshold amount in 18 U.S.C. § 1029(a)(2). Afolabi claims that she made only $647 worth of charges, having used a Nordstrom’s card ostensibly issued to a former Re/Max client. However, Afolabi indicated to the police that she used two cards issued to that woman. The evidence presented showed that only two cards were issued in that woman’s name. That second card, a Bloomingdale’s card, was used the same day as the Nordstrom’s card and $522.89 was charged. Thus, the evidence shows that more than $1,100 was charged on that person’s accounts alone on one day. Therefore, there was sufficient evidence for a reasonable jury to conclude beyond a reasonable doubt that Afolabi violated 18 U.S.C. § 1029(a)(2). Moreover, Afolabi was also convicted of aiding and abetting violations of that statute. Aiders and abettors are liable to the same extent as the principal. See 18 U.S.C.A. § 2(b) (West Supp.1998). According to Afolabi’s signed confession, she used five of the fraudulently obtained credit cards. She signed several others that she did not personally use. The record reveals that those cards were used to charge thousands of dollars worth of merchandise. Therefore, there is sufficient evidence to sustain her convictions. VI. Finally, the defendants raise several challenges to their respective sentences. Afolabi claims that she should have received a reduction for her role in the offense and that the total loss was not reasonably foreseeable to her. Akinkoye claims that he did not abuse a position of trust as that term is defined in the Guidelines and that the district court erred in departing upward for obstruction of justice. We will address the departures in turn, bearing in mind that the district court’s factual determinations underlying the enhancements are reviewed for clear error. See 18 U.S.C.A. § 3742(e) (West Supp.1998); Koon v. United States, 518 U.S. 81, 97, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). A. The Refusal To Depart Downward In Afolabi’s Sentence Afolabi contends that the district court erred in refusing to depart downward in her case because she merely signed the back of some of the cards and occasionally accompanied Akinkoye when he used the cards. She argues that since she never applied for any of the cards and never held on to any of them, she is entitled to a departure. Even if we agreed with Afolabi (and we do not), we could not grant her the relief that she seeks. Congress has made clear that we cannot review a district court’s decision not to depart from the applicable guideline range if that decision was based on a determination that a departure is not appropriate. See 18 U.S.C.A. § 3742(a) (West Supp.1998); United States v. Brock, 108 F.3d 31, 33 (4th Cir.1997). By contrast, we can review refusals to depart if the district court believed that it did not have the authority to depart. See Brock, 108 F.3d at 33. Here, the record shows that the district court was well aware of the departure for defendants whose role in the offense was minimal. See U.S.S.G. § 3B1.2 (1998). However, the district court decided that Afolabi was involved in the offense to such an extent that she did not merit the downward departure. As the district court has determined that a departure is inappropriate, we may not review it. B. Reasonable Foreseeability Of Loss Afolabi also contends that the total loss occasioned by the scheme, $214,-245.28, was not reasonably foreseeable to her because she only used one card for a total loss of $647. Under U.S.S.G. § lB1.3(a)(l)(B), a conspirator may be held responsible not only for the losses his own conduct personally caused, but also for any other losses resulting from the furtherance of the conspiracy that were reasonably foreseeable to him. The commentary to § lB1.3(a)(l)(B) makes clear, however, that only those losses resulting from conduct occurring in furtherance of the jointly undertaken criminal enterprise are relevant. See id. In the instant case, the district court concluded that the entire loss caused by the conspiracy was reasonably foreseeable to Afolabi. Afolabi continues to maintain that the only loss reasonably foreseeable to her was the $647 charge that she detailed in her confession. However, the weight of the evidence reflects that the district court did not abuse its discretion in departing upward to account for the additional losses that Afolabi could foresee. First, Afolabi’s continued efforts to cling to the one $647 loss as her only participation miss the mark. The record reflects that Afolabi indicated through her initialing certain pages of police documents that she used five of the cards at issue. She later stated that she signed the backs of other cards but did not personally use all of those cards. She also accompanied Akinkoye during many of his transactions. Certainly, losses occasioned by the use of those cards were reasonably foreseeable to her. The losses resulting from the use of the cards with men’s names on them presents a much closer question. There is no direct evidence that Afolabi helped Akinkoye use the men’s cards. As a result, Afolabi argues that she could not reasonably foresee any of the losses resulting from their use. However, the record establishes that: (l)there is great overlap in the days during which men’s and women’s cards were used; ©Afolabi accompanied Akinkoye whenever the women’s cards were used; (3) Akinkoye ultimately retained the possession of all of the cards; and (4) many of the overlapping fraudulent transactions occurred within close geographic proximity of each other. In light of those facts, the district court could reasonably infer that Afolabi was with Akinkoye during the transactions and that the use of the cards was within the scope of the conspiracy. Therefore, the district court did not abuse its discretion. C. The Abuse Of Trust Departure Akinkoye disputes the district court’s decision to depart upward because he abused a position of trust. Akinkoye contends that real estate agents do not occupy a position of trust, or, in the alternative, that the only victims were the banks, with whom he held no position of trust. Under U.S.S.G. § 3B1.3 (1998), a district court may depart upward if it determines that the defendant abused a position of trust and that abuse significantly contributed to the commission or concealment of the crime. See id. We review the district court’s factual determination that Akinkoye abused a position of trust for clear error. See United States v. Mackey, 114 F.3d 470, 476 (4th Cir.1997). Akinkoye’s first argument is unpersuasive. He cites a series of cases in other circuits where defendants of various occupations were held not to have abused trust. In our circuit, however, we have rejected a mechanistic approach to the abuse of trust departure that excludes defendants from consideration based on their job titles. See United States v. Gordon, 61 F.3d 263, 269 (4th Cir.1995) (“The abuse of trust enhancement was not designed to turn on formalistic definitions of job type.”)- Instead, we examine several factors in determining whether a particular defendant abused a position of trust. Those factors include: (1) whether the defendant had either special duties or “ ‘special access to information not available to other employees’ (2) the extent of discretion the defendant possesses; (3) whether the defendant’s acts indicate that he is “ ‘more culpable’ than others’ ” who are in positions similar to his and who engage in criminal acts; and (4) viewing the entire question of abuse of trust from the victim’s perspective. See id. (citations omitted). In reviewing the factors mentioned above, we cannot conclude that the district court clearly erred in determining that Akinkoye held a position of trust and abused it. First, Akinkoye had special access to information as a real estate agent. Re/Max’s clients not only gave Re/ Max confidential information (such as Social Security Numbers), but also the keys to their respective homes. These items were given to Re/Max to facilitate Re/ Max’s representation of them in the sale of their homes. Although the confidential information and the keys were located where any Re/ Max employee theoretically could have accessed them, a real estate agent’s use of them is far less likely to arouse suspicion than another staffer’s. Akinkoye entered clients’ homes and took files home with him without much concern on Re/Max’s part because such activities are consistent with his duties as an agent. By contrast, a Re/Max secretary undoubtedly would have aroused suspicion much more quickly by engaging in those activities. Akinkoye’s ability to set his own schedule and work odd hours with little supervision and little concern from Re/Max also facilitated the crimes. Those facts show that Akinkoye’s position made his criminal activity difficult to detect, which is a basis for the enhancement. See U.S.S.G. § 3B1.3; United States v. Hill, 915 F.2d 502, 506 (9th Cir.1990) (stating that a person in a position of trust can be distinguished from others by “the extent to which the position provides the freedom to commit a difficult-to-deteet wrong”). The second and third factors also are met. Akinkoye had great discretion. The manager of the Re/Max office in which Akinkoye worked testified that the agents enjoy broad discretion in the hours they work, freedom of access to information and other matters. She also stated that the agents are subject to little supervision. Based on her uncontroverted testimony, the second factor is met. In addition, the third factor is met because of the nature and extent of Akin-koye’s crime. Over a nineteen-month span, Akinkoye acquired dozens of credit cards through his scheme and caused an actual loss of $214,245.28. He wrote more than $30,000 worth of fraudulent checks to •the credit card companies in an effort to increase the limits of the cards. He also enlisted the help of a woman, Afolabi, to facilitate the use of the cards with women’s names on them. In all, Akinkoye is more culpable than the real estate agent that may commit crimes. Finally, we must view Akinkoye’s position from the perspective of the victim. Akinkoye first asserts that the banks were the real victims and from their perspective, he had an ordinary commercial relationship (credit card applicant to credit card company relationship). See United States v. Moore, 29 F.3d 175, 178 (4th Cir.1994) (holding that an ordinary commercial relationship between the perpetrator and victim is insufficient to support the abuse of trust departure). However, it seems to us that although the banks ultimately have borne the financial burden, the Re/Max clients have been victimized as well. Their identities and credit histories were used to facilitate the crime, and several of the clients testified to the difficulties they experienced in clearing up matters with the various credit agencies. One client received constant harassment at home and work from creditors. Another victim’s search for a new home was impeded because of the credit problems caused by Akinkoye’s activity. Thus, Akinkoye’s focus on the ultimate financial burden ignores the emotional, financial and other burdens borne by the clients until the extent of the fraud scheme was exposed and corrected. Moreover, Akinkoye need not have personally known all of the Re/Max clients he defrauded to be subject to the departure. The clients trusted Re/Max to represent them. Their personal information was made available to all of Re/Max’s agents in order to facilitate effective representation. Akinkoye would not have had access to the homes and information if not for his status as an agent. Moreover, Akinkoye’s reading of the Guidelines would lead to absurd results. If we were to adopt his interpretation of the Guidelines, then, for example, the managing partner of a law firm could not be held to have abused trust of clients of the firm whom he or she had not met. Yet, that partner is precisely the type of person to whom the enhancement was intended to apply, because the clients engaged the firm to represent them. Similarly, Re/ Max’s clients engaged Re/Max to represent them, and they placed their confidence in Re/Max’s agents as their representatives. Akinkoye used that trust to obtain credit cards and execute a fraud scheme. Therefore, the district court’s determination that Akinkoye abused a position of trust was not clearly erroneous-. D. Obstruction Of Justice Finally, Akinkoye disputes the district court’s upward departure for obstruction of justice. The district court departed upward because Akinkoye committed perjury during a pretrial hearing. While testifying under oath during a hearing pursuant to his motion to suppress evidence, Akinkoye uncategorically denied ever having given any statement to the police about the credit card scheme. Several days earlier, Akinkoye confessed to his role in the scheme and gave a detailed statement. An upward departure for obstruction of justice may properly be based on perjurious testimony. See U.S.S.G. § 3C1.1, n. 3 (1998). Testimony from pretrial proceedings may be considered. See Gordon, 61 F.3d at 270. The district court must specifically identify the perjurious statements and make a finding either as to each element of perjury or one “ ‘that encompasses all of the factual predicates for a finding of perjury.’ ” Id. (quoting United States v. Dunnigan, 507 U.S. 87, 95, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993)). In the instant case, Akinkoye repeatedly denied ever telling Inspector Bernardo of his involvement in the scheme. However, the Inspector recounted in detail Akin-koye’s account of the events. The district judge expressly found that Akinkoye lied when he stated that he did not make any of the statements attributed to him, and that the issue of whether the statements were lawfully obtained “was the whole hearing.” J.A. at 540. Based on that record, we conclude that the district court neither erred in finding perjury nor .erred in departing upward for obstruction of justice. As the district court’s determinations appear to be in order, the judgment is hereby AFFIRMED. . The district court found that the total actual loss was $214,245.28. . The record shows that Afolabi initialed the pages of police documents containing the names of the persons whose identities appeared on the cards she actually used. . As one example, Inspector Bernardo testified that in the case of one husband and wife who were victimized, the dates of eight of the eleven transactions in which the wife's card was involved also showed use of the husband’s card. . See, e.g., United States v. Ragland, 72 F.3d 500, 502-03 (6th Cir.1996) (holding that a particular bank clerk did not abuse trust); United States v. Brown, 47 F.3d 198, 205-06 (7th Cir.1995) (individuals selling real estate to victims had only a commercial, not a trust, relationship with them); United States v. Smaw, 22 F.3d 330, 332 (D.C.Cir.1994) (accounting clerk with access to Social Security Numbers did not abuse trust). . In. Gordon, for example, we permitted the departure for a head bank teller who gave security and other information to individuals seeking to rob the bank for which she worked. See id. at 269-70. In general, the abuse of trust departure does not apply to bank tellers because they generally do not have sufficient managerial discretion to create a trust relationship. See U.S.S.G. § 3B1.3, Application Note 1.

SUMMARY ORDER Creditor-appellant, Phillip D. Miller, Esq., appeals a September 19, 2007 order of district judge Joanna Seybert, affirming the June 19, 2006 order of bankruptcy judge Dorothy Eisenberg, which granted the motion of the United States Trustee directing Miller to disgorge all fees received from the debtor, English Sheppard Realty Corp. (“ESR”) and deliver to ESR $298,000, and denied Miller’s motion for compensation and reimbursement of expenses. “Like the District Court, we review the Bankruptcy Court’s findings of fact for clear error, its conclusions of law de novo,” In re Bayshore Wire Prods. Corp., 209 F.3d 100, 103 (2d Cir.2000) (citations omitted), and its decision to award, deny and disgorge attorneys’ fees for abuse of discretion, see id.; In re Arlan’s Dep’t Stores, Inc., 615 F.2d 925, 943 (2d Cir.1979). In deciding this appeal, we assume the parties’ familiarity with the facts, procedural background, and specification of issues on appeal. We note only that the issues in this case center around court authorization of Miller to act as attorney for ESR and Miller’s deposit and use of $281,811.63, representing the Net Sale Proceeds of ESR property located at 1325 Union Street, Brooklyn, New York, in his IOLA account, commingled with other client funds. We begin by noting that the Trustee concedes that the amount—$298,000—ordered disgorged by the bankruptcy court was in error and that the only amounts that the Trustee sought disgorgement of are the “fees that Mr. Miller paid himself” out of ESR funds. Thus, we affirm that portion of the order requiring Miller to disgorge attorney fees he paid to himself from the Net Sale Proceeds. In so ruling, we have no doubts that disgorgement of fees was appropriate for at least two reasons. First, even assuming that Miller was treated for some purposes as counsel for ESR until May 1, 2001 (an assumption we may revisit if/ when this case is returned to us after remand), see J.A. at 1, 6, 105-07, 112, 129-31, and independent of his actions in commingling ESR funds in an IOLA account held in his name, Miller violated that portion of the Escrow Order requiring him to retain the proceeds in an escrow account “pending confirmation of Debtor’s Chapter 11 Plan of Reorganization (‘Plan’) and distribution pursuant to Court Order.” Second, as it pertains to fees for work performed for ESR specifically, Miller did not obtain a fee award as required by 11 U.S.C. § 330(a). Thus, the bankruptcy court did not abuse its discretion in ordering Miller to disgorge fees paid to himself from the Net Sale Proceeds, without prior bankruptcy court authorization. However, we remand to the bankruptcy court with instructions to conduct an evi-dentiary hearing to quantify said fees and direct Miller to disgorge that amount. We do so because we agree with the Trustee that there is no support in the record for a disgorgement order of fees totaling $298,000. Indeed, this amount exceeds the total amount of the Net Sales Proceeds, $281,811.63, and further, does not account for the $35,447.42 that Miller previously disgorged to ESR. See J.A. at 1117. Our preliminary review of the record indicates that, from his IOLA account, Miller paid himself at least $32,500 for work performed for ESR. See J.A. at 183, 202 ¶ 9, 228. However, the record also reflects other disbursements from the same account, including fees to Miller for work on other client matters, but also, payments for transactions—specifically the purchase of Lots 43 and 48 and payment of related tax liens, which involved at least $220,000 of ESR estate funds—done on ESR’s behalf. See In re English Sheppard Realty Corp., No. 06cv4742 (E.D.N.Y. filed Aug. 30, 2006), doc. # 1-28 (Ex. 18), doc. # 1-18 (Ex. 13) at A19; J.A. at 419-20, 506-09, 516, 521, 524 ln. 83, 526 Ins. 23-24, 519-30, 578, 581. It is clear that if made out of the Net Sale Proceeds, these payments and transactions violated the Escrow Order as they were made without “Court Order” However, it is also clear that the payments related to the Lots transactions were not “fees,” and accordingly, did not fall -within the amounts for which the Trustee sought disgorgement. To the extent that disgorgement for fees paid to Miller for non-ESR matters are ordered disgorged, and/or to the extent that disgorgement of whole or part of the ESR estate funds used in connection with the ABSR transaction is pursued on remand, the bankruptcy court should carefully and clearly explain whether, how, and on what basis it is accounting for or requiring disgorgement of the payments related to the Lots transactions. In doing so, the court should pay due attention to the fact that both ESR and the Trustee concede that the Lots were ultimately sold for $3.0 million, and that ESR in its filings to the court, described the Lots transactions as being to ESR’s benefit. See J.A. at 419-20, 717-36, 757-58, 803-24. Finally, we conclude that the bankruptcy court did not abuse its discretion in denying Miller’s motion for compensation and reimbursement of expenses in view of Miller’s serious breaches of his fiduciary obligations to the court. See In re Arlan’s, 615 F.2d at 941, 943. We now turn to the various other arguments that Miller has raised in this appeal. We reject Miller’s contention that he did not need an order to disburse funds because he obtained a lien under New York law. See, e.g., N.Y. Jud. Law § 475 (requiring that in order to assert a charging lien, the attorney must make an application to the court to determine and enforce the lien). We also find no merit to Miller’s claim that his Fifth Amendment due process lights were violated because the various motions were not adjudicated in the context of an adversarial proceeding. See Fed. R. Bankr.P. 7001(1); 2017(b). We further conclude that any harm to Miller’s due process rights by failure to provide the transcript of the March 25, 1999 hearing would be harmless as our decision does not rest on the absence of a retention order. Thus, we AFFIRM that portion of the judgment of the district court affirming the bankruptcy court’s denial of Miller’s requests for compensation and reimbursement of expenses. We further AFFIRM that portion of the judgment of the district court affirming the bankruptcy court’s order that Miller disgorge attorneys fees paid to himself from the ESR proceeds. However, we VACATE and REMAND to the bankruptcy court that portion of the judgments specifying the amount of fees to be disgorged by Miller. A renewed appeal will be assigned to this panel pursuant to the procedures set forth in United States v. Jacobson, 15 F.3d 19, 21-22 (2d Cir.1994). . It is not entirely clear to us where the amount of $298,000 originated. The Trustee may bear responsibility for this error since it appears that it submitted the proposed order identifying $298,000 as the amount to be disbursed. . We are assuming, without deciding, that the Trustee and ESR have not waived the right to seek disgorgement of amounts other than fees. . To avoid any confusion on remand, we note that our review of the record confirms that Miller brought the $220,000 and related payments, as well as his "debtor-in-possession” and “ratification” arguments to the attention of both Judge Duberstein and Judge Eisen-berg. Indeed, during the May 16, 2006 hearing and in her June 19, 2006 order, Judge Eisenberg considered many of the documents that ESR now asserts were considered only by Judge Duberstein. Miller also raised these issues to the district court. . Any failure by Miller to request such a proceeding before the bankruptcy court would likely result in waiver. Cf. In re Arlans, 615 F.2d at 942-43 (finding waiver of right to an evidentiary hearing where special counsel for debtor had the opportunity to introduce evidence but did not).

PER CURIAM: Claudio Otero, Jr., seeks to appeal the district court’s order denying his motion for reduction of sentence filed under 18 U.S.C. § 3582(c)(2) (2006). In criminal cases, the defendant must file the notice of appeal within ten days after the entry of judgment. Fed. R.App. P. 4(b)(1)(A); see United States v. Alvarez, 210 F.3d 309, 310 (5th Cir.2000) (holding that § 3582 proceeding is criminal in nature and ten-day appeal period applies). With or without a motion, upon a showing of excusable neglect or good cause, the district court may grant an extension of up to thirty days to file a notice of appeal. Fed. R.App. P. 4(b)(4); United States v. Reyes, 759 F.2d 351, 353 (4th Cir.1985). The district court entered its order denying the motion for reduction of sentence on September 15, 2008, and the ten-day appeal period expired on September 29, 2008. See Fed. R.App. P. 26 (providing that “intermediate Saturdays, Sundays, and legal holidays” are excluded when time period is less than eleven days). The thirty-day excusable neglect period expired on October 29, 2008. When a criminal defendant’s notice of appeal is filed more than ten days following judgment but within the thirty-day excusable neglect period, we generally remand so the district court can assess whether there has been good cause or excusable neglect to excuse the late filing. Because Otero is incarcerated, the notice of appeal is considered filed as of the date it was properly delivered to prison officials for mailing to the court. Fed. R.App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). Otero’s notice of appeal was dated October 29, 2008, the last day of the excusable neglect period. However, it was postmarked October 30, 2008, and was date-stamped received in the district court on November 4, 2008. Because it is unclear when Otero gave his notice of appeal to prison officials for mailing, we remand the case to the district court for the court to determine whether Otero’s notice of appeal was filed within the excusable neglect period and, if so, whether Otero has shown excusable neglect or good cause warranting an extension of the ten-day appeal period. The record, as supplemented, will then be returned to this court for further consideration. REMANDED.

PER CURIAM: Martez Mandel Coleman appeals the district court’s order denying his motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See United States v. Coleman, No. 3:01-cr-00506-JFA-4 (D.S.C. Dec. 15, 2008); see also United States v. Dunphy, 551 F.3d 247 (4th Cir.2009), petition for cert. filed (Mar. 20, 2009) (No. 08-1185). 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.